Perini v North Sydney Council

Lido Real Estate v Woollahra Council 98 LGERA 1 CASES CITED: North Sydney Council v Michael Standley and Associates Pty Ltd 97 LGERA 433) Tenacity Consulting v Warringah Council [2004] NSWLEC 140

DATES OF HEARING: 30 and 31 August 2010 and 11 October 2010

APPLICANT Mr Tomasetti, SC instructed by Mr C Gough of Storey and Gough LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, barrister instructed by Mr T March of HWL Ebsworth

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 This is an appeal under s 97 of the Environment Planning and Assessment Act 1979 (the EPA Act) against the deemed refusal by North Sydney Council (the council) of an application under s 96(2) of the EPA Act to modify development consent (DA/106/07) at 27, 29 and 29A Shellcove Road, Neutral Bay (the site). The site and locality 2 The site is located on the eastern side of Shellcove Road adjoining Shellcove Bay. It slopes from west to east towards the water. 29A Shellcove Road (lot 2 DP619776) is a battleaxe block formed by the subdivision of 29 Shellcove Road into two allotments in the 1950s. It has an area of 899.7 sqm and an additional 122 sqm of reclaimed foreshore land is leased from NSW Maritime. A three storey house is partly constructed on 29A Shellcove Road with a separate cabana and jetty adjoining Shell Cove Bay. 29A Shellcove Road is accessed via a 4.1m wide right of way over the adjacent properties to the north. 3 A house known as 'Keynsham' is built on 29 Shellcove Road. In 2005, 29 Shellcove Road was consolidated with the adjoining lot to the south west (27 Shellcove Road) to form one lot with two dwellings (lot 101 DP1067984). 27-29 and 29A Shellcove Road are currently in the same ownership. 4 The site adjoins a three storey dwelling (25 Shellcove Road) to the south east, a large house known as Brent Knowle (31 Shellcove Road) to the north west and a house to the north east (31A Shellcove Road). 5 The locality is characterised by residential development with a mixture of houses from different periods and styles on different subdivisions as well as residential flat buildings. Cremorne Point and a foreshore walk are on the opposite side of Shell Cove Bay. Background and proposal 6 Council approved development application (DA/106/07) on 5 November 2007 (development consent). The Notice of Determination states: Pursuant to Section 81 of the Act, notice is given that Development Application No.106/07 proposing removal of pool and construction of new dwelling with associated car port and landscaping, and boundary adjustment with No. 27-29 Shellcove Road, Neutral Bay on land described as 29A Shellcove Road, Neutral Bay was determined by Council at its meeting on 5 November 2007 by the granting of consent subject to the conditions below. 7 Condition A1 of the development consent included a Plan of Subdivision of lot 2 DP619776 (29A Shellcove Road) and lot 101 DP1067984 (27 and 29 Shellcove Road), which adjusted the boundary of these lots. The new dwelling and carport is approved on 29A Shellcove Road. 8 Condition E1 states: The maximum RL of the proposed development shall be RL 18.9 AHD measured at roof peak of lift overrun, RL 17.1 AHD measured at top of main roof of dwelling and RL 16.9 AHD measured at top of roof retaining wall of carport. 9 A history of the development consent and subsequent s96 applications is detailed in the Statement of Facts and Contentions filed by council on 6 July 2010 (S of F&C). Details of previous approvals are provided in the Heritage Impact Statement prepared by Godden Mackay Logan in August 2004 (GML Report). This includes reference to the subdivision of 29 Shellcove Road into two lots in 1957 and the approval of a house on 29A Shellcove Road in 1983, which subsequently lapsed. Alterations to Keynsham have also been approved, including significant alterations in 1986. 10 The current s96 application (DA/106/07/3) seeks approval for changes to the development consent, which have been constructed without approval. The amendments include internal and external changes, which are detailed in the S of F&C. The parties agree that the proposal is substantially the same development and council did not raise issue with a number of the changes but is principally concerned about: - The deletion of a 'chamfer' to the north east corner of the building; - An increase in the total "height" of the building of 2.4m through increased excavation (1.4m) and an increase in the roof height (1m); - A decrease in landscaped area; - An increase in the size and height of the garage to include a pool equipment room and a change in its location to be 3.3m to the west within 29 Shellcove Road and closer to the southern boundary; - Construction of a swimming pool to the east of the garage; - Changes to the treatment of the eastern façade of the building. 11 The proposal also includes an additional 3.3m adjustment to the western boundary to increase the site area of 29A Shellcove Road from the approved 899.7sqm to 986.6sqm to accommodate the garage within its lot. 12 A conciliation conference under s34 of the Land and Environment Court Act (LEC Act) was held on site on 9 June 2010. No agreement was reached and the conference was terminated. 13 The hearing commenced on site on 30 August 2010 and was adjourned part heard on 31 August 2010. It resumed for submissions on 11 October 2010.

Planning controls 14 The site is within a Residential A2 zone under North Sydney Local Environmental Plan 2001 (NSLEP). The proposal is permissible with consent. 15 Division 2 in Part 3 of the NSLEP includes residential zone controls. Compliance with cl 17 - Building heights, cl 18 - Building height plane (BHP) and cl 20 Landscaped area were in dispute between the parties and are discussed further in this judgment. The parties agree that State Environmental Planning Policy No 1 - Development Standards (SEPP1) does not apply to a s96 application (see Lido Real Estate v Woollahra Council 98 LGERA 1 and North Sydney Council v Michael Standley and Associates Pty Ltd 97 LGERA 433). 16 The site is identified as heritage items on the Conservation Map in NSLEP. A number of other nearby houses including: Brent Knowle (31 Shellcove Road), Ailsa (33 Shellcove Road), 37, 39, and 49 Shellcove Road are also identified as heritage items. Clause 44 of NSLEP provides the following relevant objectives for heritage: …… (c) ensure the conservation of heritage items (and their curtilages) and conservation areas, and (d) ensure that development does not adversely affect the heritage significance of heritage items and conservation areas. 17 Clause 48(1) of NSLEP includes objectives for heritage items (1) Heritage item objectives The specific objectives of the heritage item controls are to: ……. (b) provide specific criteria to be considered when determining an application in respect of a heritage item, and (c) ensure heritage items are conserved and maintained. 18 Clause 48(2) provides: When determining whether or not to grant consent to a development application in respect of a heritage item, the consent authority must consider the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item concerned. 19 Clause 48(3) includes matters for consideration to determine the heritage impact of the proposal and cl 48(4) provides that a Statement of Heritage Impact may be required. 20 The site is included in the Kurraba Point Conservation Area in NSLEP. Clause 49 provides objectives and matters that must be considered for development in conservation areas. 21 North Sydney Development Control Plan 2002 (NSDCP) is also relevant. The site is within the Kurraba Point South Neighbourhood of the South Cremorne Character Area. 22 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 applies to the site and the reclaimed land. Clause 26 provides: The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows: (a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour, (b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items, (c) the cumulative impact of development on views should be minimised. The issues 23 The key issues between the parties relate to whether the proposed changes: i. have an acceptable impact on the heritage significance of Keynsham and its landscape setting, particularly views to and from the site. ii. provide adequate landscaping. iii. adversely impact on residential amenity, particularly view loss to 31A Shellcove Road. The evidence 24 The hearing commenced on site where the Court heard evidence from the owner of 31A Shellcove Road who raised concerns about the impact of the proposal on the views from her informal dining area. She stated that this area is her most frequently used living area and she considered the view loss to be unacceptable as it resulted from a development that does not comply with the relevant planning controls and has been constructed without consent. 25 Mr H Sanders provided a letter on behalf of the adjoining owner at 25 Shellcove Road who raised concerns about overlooking of the tennis court and family room and overshadowing from the increased height and proximity of the garage. 26 The Court heard expert evidence from:

For the council - Mr G Mossemenear, planner - Ms J Hill, heritage architect

For the applicant - Mr J Hancock, planner - Mr R Staas, heritage architect 27 Ms L Varley, for the council and Ms N Sonter, for the applicant prepared a joint statement on landscape issues but were not required for cross examination. Heritage Heritage significance 28 Mr Staas and Ms Hill generally accepted the Statement of Significance in the GML Report that was submitted as part of DA/106/07. 29 The Statement of Significance in the GML Report states: Built c1920, the property Keynsham at 29 Shellcove Road is associated with the development of one of the earliest harbourside suburbs in the Sydney. Both individually and as part of a group of seven adjacent residences, Keynsham provides noteworthy evidence of the character of the early residential development of Neutral Bay and of the interwar period, in particular. Key siting features such as the prominent frontages to Shellcove Road, one of early roadways of the area, and the views towards Shell Cove and the harbour allowed by their ridge top location are significant, shared attributes of these early residences. Of this group, Keynsham is also the only site remaining that has retained the open grounds and water frontages of the original (1912) allotment though the site has, in common with the other properties of the Shellcove Road Group, actually been subdivided.

Keynsham's chief aesthetic significance is as a substantial contributory component to the group of adjacent early residences in Shellcove Road. These sizeable residences of similar period and character set in landscaped gardens and sited close to the street frontage along Shellcove Road provide a notable streetscape feature within the local area.

The views to and from the residence from Shellcove Road and Shell Cove/harbour to the rear also contribute to the significance of Keynsham and the group of which it is a part. By taking advantage of the stepped topography of the site and being located close to the highest point of the site, the residence has notable (though partially screened) views towards and from the water, particularly to the southeast and the western slopes of Cremorne Point.

The main residence also has some aesthetic significance as an example of interwar 'Arts and Crafts' style architecture and for its associations with the architect Frank Buckell (and the firm of Spain, Cosh & Minnet Architects), although it no longer represents a particularly intact example of the architect's work or period. 30 The GML Report includes earlier listings for the house and other houses in the group including the State Heritage Inventory Listing (1993), the listing under the previous LEP 1989 and the National Trust Listing (1980). 31 Mr Tomasetti SC, for the applicant, and Mr Hemmings, for the council, agree that it is first necessary to understand the significance of the item to assess the extent of impact. They made competing submissions about the significance of the item. 32 Mr Tomasetti submits that the interpretation to be drawn from the various heritage listings of 29 Shellcove Road is that the significance of the item is as part of a group and its contribution to the streetscape of Shellcove Road. In his submission, the individual building has some aesthetic significance but it is not an intact example having been significantly altered in the 1930's and 1980's. Further, the subdivision of 29 Shellcove Road and of other nearby items has reduced their curtilage to the extent that their relationship to the water and landscape setting is of little significance. In Mr Tomasetti's submission, the proposed changes will not be visible from the street and will therefore 'have no impact whatsoever on the ways in which number 29 relates to the streetscape in Shellcove Road or how number 29 relates in heritage significance terms to the balance of the buildings in the group'. 33 Mr Hemmings submits that the GML Statement of Significance is based on the earlier statements and is accepted by the heritage experts. The alterations to the house and the subdivision of its original lot existed prior to its listing as a heritage item, which includes both lots. The GML report was prepared to provide guidance for a dwelling on the subdivided lot to minimise impacts on the significance of the house and its setting. Mr Hemmings submits that the Statement of Significance in the GML report identifies the significance of the item and includes views from and to the house from the water and its landscape setting.

Impact of the proposal on heritage significance 34 The experts agree that there will be an impact on the views and setting of Keynsham but disagree on whether this will adversely impact on the significance of the item.

Views in 35 In Ms Hill's opinion the increased roof height and the enlarged garage further reduce the views of Keynsham, particularly its sandstone base, from Cremorne Point walk. The garage is approximately twice the size of the approved garage and it removes area for deep soil planting. She accepts the use of sandstone cladding and vegetation on the walls will improve its appearance but the garage will still impact on the setting of the item. 36 Mr Staas states that: In the overall prospect of Neutral Bay from the public walkway along Cremorne Point, the visibility of Keynsham is insignificant. It forms part of a highly built up area and is not prominent or distinctive in the group of houses that rise above the later subdivisions of the harbour frontage. 37 Within this context, Mr Staas considers the visibility of the stone base of Keynsham is limited and the increase in roof height has minimal impact on views. He acknowledges that the additional size of the garage would obscure some views but states that this is acceptable as the stonework base of the house is replaced by the 'green wall' of the garage which will blend in the landscaped setting. Mr Staas considers that as the pool is located where the garage was approved it will not reduce opportunities for deep soil planting between the two houses and provides adequate separation.

Views out 38 Ms Hill considers that the larger garage and the boundary adjustment will impact on the curtilage of Keynsham by reducing its landscape setting within its grounds. The garage and the pool will reduce opportunities for deep soil planting and impact on the landscape setting of Keynsham. The increased roof height of the house will further reduce views from Keynsham including parts of the land water interface. 39 Mr Staas is of the opinion that the additional height of the roof will have minimal impact on the views from the verandah of Keynsham and the other views from the house will be unaffected. The historic curtilage has been already affected by the subdivision and the development consent. The proposed boundary change and the location of the garage will have minimal additional impact and is mitigated by the planting on the garage roof and the proposed landscaping.

Findings 40 The heritage experts accept the Statement of Significance in the GML Report. It identifies the chief aesthetic significance of Keynsham: …. as a substantial contributory component to the group of adjacent early residences in Shellcove Road. These sizeable residences of similar period and character set in landscaped gardens and sited close to the street frontage along Shellcove Road provide a notable streetscape feature within the local area. 41 The Statement of Significance also identifies other aspects of the significance of the item including views to and from Shell Cove and the harbour. 42 I do not accept Mr Tomasetti's submission that the changes to the house and the subdivision of its grounds mean that its significance is only as part of group that is appreciated from Shellcove Road and that the proposal will therefore have no impact on this significance. These changes are noted in the Statement of Significance in the GML Report, which is accepted by the heritage experts. They agree that the heritage significance of Keynsham includes: its landscaped setting; views to Keynsham from the water and Cremorne Point, both individually and as part of the group; and views from Keynsham to the water. The principal elements of the proposal that impact on these aspects of the significance of Keynsham are the increase in the roof height, the increase in the size and location of the garage and the changes in the landscaping. The heritage experts disagree on the extent of the impact of the proposal on this significance. 43 While the GML report was not submitted with the s96 application, it accompanied the development application and is the only Heritage Impact Statement that has been prepared for development of the site. It defines the significance of the item and outlines measures to mitigate adverse impacts on this significance. I do not accept Mr Tomasetti's submission that these mitigation measures are of no relevance to the s 96 application. Rather they provide an appropriate guide to the consideration required by cl 48(2) of NSLEP of the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item. 44 Under cross examination, both experts commented on the mitigation measures in the GML Report but reached different conclusions. Mr Staas considers that the setting of Keynsham has been 'dramatically changed' by the subdivision and the development consent and its setting is of 'little importance'. Within this context he considers that the GML mitigation measures are of limited relevance and that the proposed changes will have little impact on the remaining significance of the item. 45 Ms Hill recognises the impact of the existing subdivision and approved development but considers that the mitigation measures where relevant for the original application and are equally as relevant for the amendments. In her opinion, the proposal does not satisfy a number of the mitigation measures. 46 The GML Report identifies adverse impacts that would result from the construction of a dwelling on the site. However, it recognises that these impacts mostly result from previous approvals, including the subdivision of the original allotment of Keynsham into two allotments and the earlier approval of a dwelling. It comments that heritage impacts of a proposed house on 29A Shellcove Road must be considered within this framework. 47 The GML Report proposes measures to mitigate the potential adverse impacts which include:

1. Ensure the new development does not intrude physically onto the upper allotment with the residential residence (lot 1). 2. Siting the new residence away from the existing residence to provide adequate physical separation and as much visual spaciousness as possible for the historic building. 3. Landscaping the area between the existing and new residences in a manner that effectively exploits existing and new planting and foliage screening to retain something of the role of the original garden as part of the visual screening (eg as a green open area in the foreground of views towards Shell Cove). …… 5. Ensuring that the overall height of the new building is kept as low as possible to minimise the impact on key views both out from and towards the existing residence. 48 In assessing the proposal against the mitigation measures in the GML Report, I accept Ms Hill's evidence that the extension of the garage and the pool will adversely impact on the significance of the item. The garage has increased in size to accommodate storage and a pool equipment room (from about 6.5m x 5.5m as approved to about 5.5m x 10.5m) and is located 3.3m closer to Keynsham. It intrudes into 29 Shellcove Road and requires a boundary adjustment to legitimise its location. As constructed, the garage is higher than what was approved (RL17.2 as built and RL16.9 as approved). The applicant has agreed to reduce its height to the approved level. I accept that the height reduction, the proposed roof top landscaping and wall treatment will mitigate the impact of the garage to some extent, however, I do not accept that this is sufficient to justify its increased size. 49 The garage, as approved, impacts on the setting of Keynsham but was found to be reasonable by council. The changes will exacerbate this impact, to an unacceptable extent. Given that the proposal also does not meet the landscape control in cl 20 of NSLEP, there is no justification to further reduce the landscape setting of Keynsham. 50 The garage extension will also be visible from the walkway along Cremorne Point and will introduce further built form into the setting of Keynsham. 51 I do not accept Mr Staas' opinion that the visibility of Keynsham within the 'overall prospect' from Cremorne Point walkway is 'insignificant'. Keynsham, as with the other heritage buildings is part of this 'prospect'. Changes to parts of this 'prospect' impact on individual items and cumulatively impact on the view as a whole. 52 Nor do I accept Mr Staas' evidence that the setting of Keynsham is of little consequence. Clearly the subdivision and the approved development have changed and impacted upon the setting. However, the subdivision was approved some time ago and it is not an unreasonable expectation that a dwelling could be constructed on 29A Shellcove Road given the zoning of the land. The GML Report recognised these constraints and sought to mitigate the impact of a future house. In approving the dwelling council considered the impact to be acceptable. The question is whether the changes to the development consent are acceptable. 53 The mitigation measures in the GML Report seek to maintain 'separation' and 'visual spaciousness' between the existing and new dwelling and landscaping that retains something of the role of the original garden as part of the visual screening. The garage extension and the pool offend these principles. In particular, they further reduce opportunities for deep soil planting which could provide elements of greenery between the two built forms. 54 The heritage experts agree that views from Cremorne Point to the heritage items in Shellcove Road are affected by the later developments on the subdivided lots which front Shell Cove. However, they note that 'in general garden settings are retained between these developments and the Heritage items'. The changes will reduce opportunities to provide a garden setting between Keynsham and the dwelling and will impact on views of Keynsham from Cremorne Point. 55 Ms Hill has accepted that with a reduction in the garage height, landscaping of the garage roof and the deletion of the pool equipment room and the pool will mitigate the impact to an acceptable level. 56 The council is seeking a reduction in the garage height to RL16.8m whereas the applicant agrees to RL16.9. While I accept that the lower the height the less impact on views from Keynsham, however, the landscape experts agree that a minimum soil depth of 250mm is required to support the roof top plants. To achieve this depth, the overall height should be 16.9m. This would be below the as built height of the roof of the house (RL17.4) and therefore the garage will not intrude into the views to and from Keynsham to any greater extent than the roof of the house. 57 I accept Mr Staas' evidence that the increase in the height of the roof of the house when compared to the approved roof height, of itself, will not materially impact on views to and from Keynsham and therefore does not adversely impact on the significance of the house. Even if the roof were reduced in height to RL16.4, the garage would then intrude into views to Keynsham from the Cremorne Point walkway. The views from the verandah of Keynsham to the water will not be affected in a material way by the increase in roof height. A condition that would reduce the roof height is therefore not required on heritage grounds. 58 However, in reaching this conclusion, I note that the height approved in the development consent plans impacts to a degree on the views to and from Keynsham and a lower building or a flat roof would have had lesser impact. As approved, the height of the house complied with the 8.5m height control in cl 17 of NSLEP. However, the increased excavation and the additional roof height have resulted in a building height of 10.9m, which significantly exceeds the height control. If the height of the dwelling was measured from the excavated ground level (about RL 6.5) and an overall height of 8.5m maintained (RL15.0) this would have had significantly less impact than what was approved in the plans (RL16.4) and what is currently now proposed (RL17.4). However, council is not seeking to have the approved ground level reinstated and, in these circumstances, the proposed roof height in comparison to the approved roof height is acceptable.

Building height 59 The planning experts agree that the development consent complied with the maximum building height of 8.5m in cl 17(3) but due to the increased excavation and additional roof height the proposed maximum height is 10.9m. Mr Mossemenear concedes that there is little that can be done to reverse the excavation and that the increase in the roof height is his principle concern. 60 The planners disagree on whether the increase in height meets the objectives of the control. In particular, they disagree whether the proposal promotes the retention and sharing of views (cl 17(1)(c)) to and from Keynsham. 61 The only other view affected is that from the informal dining area at 31A Shellcove Road. Mr Mossemenear states that the increase in height will increase the overall bulk and scale of the proposal when viewed from 31A Shellcove Road and that the roof together with the loss of the splayed corner will unacceptably impact on views. 62 Mr Mossemenear was also concerned that: The increase in height is significant and the changes in architectural detailing, horizontal elements, proportion of glazing to masonry and balcony extensions result in the building presenting to the public domain as having excessive height, bulk and scale. 63 Mr Mossemenear referred to s 8.1.ii of NSDCP, which requires that glazed areas facing the water are a maximum of 50% of the façade. He considered that an increase in the masonry component of the ground level would reduce the perception of the overall height of the building from the water and the Cremorne Point walk. 64 Mr Hancock considered that the increase in height would not result in any unacceptable view loss and that the three storey appearance of the house was appropriate given its context. In his opinion, there is little difference in the height, bulk and scale of the approved house compared to the as built when viewed from the public domain.

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.

Building height plane 73 The planners agreed that the development consent and the proposal do not comply with the BHP in NSLEP but disagree on whether the additional impact is acceptable or meets the objectives of the control. In particular, they disagree whether the view loss from 31A Shellcove Road meets the objective in cl 18(1)(c). 74 Mr Mossemenear stated that the SEPP1 objection to the BHP was accepted as the original application was amended to provide a chamfered to the north east corner that reduced the loss of views to 31A Shellcove Road resulting from the breach in the BHP. The proposal has removed the chamfer and, in Mr Mossemenear's opinion, results in a material loss of views to 31A Shellcove Road by obstructing views of the harbour from an important living area. 75 Mr Hancock accepted that there would be a loss of view from 31A Shellcove Road but considered that this was acceptable as it is over a side boundary and there are other rooms in the house with extensive water views.

Findings 76 Under NSLEP a BHP is defined as: Building height plane a plane projected at an angle of 45 degrees over a site, commencing, at the height specified in this plan, along a boundary of the site or along any other line or boundary specified in this plan for the purpose of establishing a building height plane. 77 Clause 18 of NSLEP provides: 18. Building height plane (1) Building height plane objectives The specific objectives of the building height plane controls are to: (a) control the bulk and scale of buildings, and (b) provide separation between buildings, and (c) preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access. …… (2) Building height plane control in residential A1, A2, B or F zones A building must not be erected in the residential A1, A2, B or F zone if any part of the building will exceed a building height plane, commencing at 1.8 metres above existing ground level, and projected at an angle of 45 degrees, at all points from each of the boundaries of the site. …… 78 Mr Tomasetti accepts that 'technically' the building does not comply with the BHP, however, he referred to the planners report on the original application which states that the pool concourse level of 31A Shellcove Road is the 'effective BHP reference point for the neighbour in terms of impact' 79 While the effective level to assess the impact may be the pool level the required level is existing ground level at the boundary. The deletion of the splay has increased the non compliance with the BHP which is illustrated in Exhibit J. The key issue is whether the breach in the BHP beyond that approved in the development consent will result in unacceptable view loss to 31A Shellcove Road. 80 Both parties referred to Tenacity Consulting v Warringah Council [2004] NSWLEC 140 where Roseth SC provided principles for assessing view loss. In applying these principles, I accept Mr Hancock's evidence that the additional view loss is acceptable. The views affected by the deletion of the chamfer are from the informal dining room to the harbour but views to Shell Cove from this room are maintained. Other living rooms have uninterrupted views of the harbour and Shell Cove which are not affected by the proposal. The views from the informal dining room to the harbour are across a side boundary and are more difficult to maintain. While the view loss results from a non compliance with the BHP it is not so significant as to warrant the refusal of this aspect of the application given that appropriate view sharing is achieved.

Landscape area 81 The experts agree that the landscape areas is below that required under cl 20 of NSLEP as a result of the increased footprint of the building, increased driveway, pool and larger garage. They agree that with the proposed boundary adjustment, the landscape area is now 43.1% of 29A Shellcove Road (excluding the landscaped garage roof and the reclaimed land). However, they disagree on what should be included as landscape area and whether the non compliance with the control is acceptable and meets the objectives. 82 In Mr Mossemenear's opinion, the garage and reclaimed land are not included as landscape area and the proposal is significantly below the control. In his opinion, the extent of paving, the pool and the increased area of the garage reduce the landscape area and do not provide an appropriate landscape setting for the development and Keynsham. 83 The proximity of the pool equipment room also limits opportunities to provide a landscape buffer along the southern boundary with 25 Shellcove Road. The applicant proposes to increase the height of the boundary wall to limit opportunities for overlooking. However, Mr Mossemenear considers that the pool equipment room and the pool should be deleted. This would remove the need to increase the wall and enable effective landscaping to be provided. 84 Mr Mossemenear notes that the development consent complied with the landscape area and there is no justification to reduce the landscape area to the extent proposed. 85 Mr Hancock considers that the garage roof, reclaimed land and the pool contribute to the landscape setting and should be included as landscape area. In his opinion the changes, including the pool and the garage are 'minor refinements' which provide an appropriate standard of accommodation for the dwelling and meet the applicant's requirements.

Findings 86 Clause 20 of NSLEP provides: 20. Landscape area (1) Landscaped area objectives The specific objectives of the landscaped area controls are to: (a) promote the character of the neighbourhood, and (b) provide useable private open space for the enjoyment of residents, and (c) provide a landscaped buffer between adjoining properties, and (d) maximise retention and absorption of surface drainage water on site, and (e) minimise obstruction to the underground flow of water, and (f) promote substantial landscaping, including trees which will grow to a minimum height of 15 metres, and (g) control site density, and (h) minimise site disturbance. 87 Council contends that there is 'substantial' numerical non-compliance with the controls in cl 20(2) of the NSLEP that state that development must not be carried out in the Residential A2 zone if the percentage of any site area that is landscaped area is less than the minimum percentage for the site area specified in the relevant table. With the boundary adjustment, 29A Shellcove Road is greater than 900 sqm, therefore the required landscaped area is 60%. The site area of 29A Shellcove Road in the development consent was less than 900sqm and therefore required a landscaped area of 58%. The development consent complied with this requirement. 88 Under NSLEP 'landscape area' is defined as: Landscaped area of a site means the part of the site that is generally at existing ground level, that is not occupied at or above or below ground level by any building structure, swimming pool or hard-surfaced tennis court, or the like, that is or is proposed to be predominantly landscaped by way of plantings, gardens, lawns, shrubs or trees and that is available for use and enjoyment by the occupants of the building erected on the site, but does not include any area set aside for driveways and parking. 89 Under NSLEP 'site' is defined as: Site the land to which an application for consent under the Act relates, excluding any land upon which the development to which the application relates is not permitted by or under this local environmental plan. 90 Mr Hemmings submits that the reclaimed foreshore land should not be included for the purpose of calculating the landscape area control as this land is not within NSLEP and therefore development is not permitted on the reclaimed land under NSLEP. Mr Tomasetti accepts that the reclaimed land is not controlled under NSLEP but submits that the 'exclusionary words' in the definition are therefore not relevant and that on a merit assessment the foreshore land forms part of the landscape area and meets the objectives of the clause. Mr Tomasetti also submits that the landscaping on the garage roof should be included as landscape area. 91 I accept Mr Hemmings submission. The reclaimed land is owned by NSW Maritime and leased by the Applicant. It is outside the boundary of NSLEP, is not included as part of the site of the development application or the s96 application and the development is not permissible on the reclaimed land under NSLEP. The definition of 'landscape area' does not include areas such as the garage roof as this is not generally at existing ground level and is above a building structure. Even if these areas were included, the landscape area is 54% and does not comply with the numerical control of 60%. 92 The proposal also does not meet the objectives of the control; in particular, the enlarged garage, pool and extent of paving reduce the effectiveness of the landscape buffer between the house and Keynsham as well as between 25 Shellcove Road. The changes together with the enlarged house and the increased excavation do not maximise retention and absorption of surface drainage water or minimise site disturbance. 93 The landscape area for 29 Shellcove Road in the development consent did not comply with cl 20 of NSLEP (39.5%), the boundary adjustment further decreases the landscape area (36.2%). Overall the landscape area for 29A Shellcove Road and Keynsham do not meet the objective to control density. 94 The condition sought by council (C27) proposes that the pool, pool equipment room and part of the paving on the driveway are to be replaced with soft landscaping. This will increase the landscape area to about 50% but it will remain non compliant with the numerical requirements of cl 20. I accept that it is reasonable to impose this condition, as there is no justification to reduce the landscape area in the manner sought by the proposal.

Conditions 95 Mr Hemmings submits that due to the number of changes which are proposed and which are acceptable to council, the s96 application should be approved subject to conditions. The parties did not agree on a number of conditions, which reflect the issues in dispute that have been discussed above. The following conditions are imposed that address my findings on these issues:

Condition A1 96 Amended to include updated plan numbers. Condition C23 - Height of Garage 97 The maximum height of the garage is RL16.9.

Condition C24 - Landscape Plan. 98 The approved landscape plan is to be amended to: - Delete reference to the increase in the southern boundary wall adjoining the garage - Provide landscaping to reflect the requirements of C27 - Include RLs.

Condition C25 - Height of building 99 Amended to include the as built height of the main roof of RL17.4.

Condition C27 - Increase to Landscape area 101 Pool, pool equipment room and part of the paving on the driveway are to be replaced with soft landscaping.

Condition C28 - Lower level eastern elevation 102 Condition has been amended to require the lower garden wall to be a minimum height of RL7.5, which will reduce the amount of glazing that is visible from the water and Cremorne Point walk, and provide the appearance of a sandstone base to the building. Orders 1. The appeal is upheld in part. 2. The application under s 96 of the Environmental Planning and Assessment Act 1979 to modify development consent (DA/106/07) to construct a new dwelling at 29A Shellcove Road, Neutral Bay is approved. The consent is modified as set out in Annexure A. 3. The exhibit, except Exhibits B and G, are returned.

      Annelise Tuor
      Commissioner of the Court

To modify Development Consent No.106/07 as set out in Notice of Determination dated 8 November 2007 in the following manner:- Delete condition A1 (Development in Accordance with Plans), C21 (Landscape Buffer Plantings) and E1 (Height) of the consent and insert in lieu thereof the following new conditions, namely:

A1. The development shall be carried out in accordance with the following plans all Project No.03084, and all prepared by Noel Bell, Ridley Smith and Partners:

AWD01 Issue B dated 15 December 2008 AWD04 Issue Y dated 16 July 2009 AWD05 Issue J dated 19 February 2009 AWD06 Issue L dated 19 February 2009 AWD09 Issue E dated 21 August 2009 AWD10 Issue H dated 23 January 2009 AWD11 Issue J dated 21 April 2009 AWD12 Issue G dated 3 December 2008 AWD13 Issue E dated 12 March 2009 AWD14 Issue E dated 28 April 2009 AWD15 Issue E dated 24 February 2009 AWD16 Issue G dated 24 February 2009 AWD17 Issue H dated 24 February 2009 AWD18 Issue F dated 29 January 2009 AWD19 Issue C dated 12 March 2009 AWD20 Issue C dated 19 December 2008 AWD21 Issue C dated 19 December 2008 AWD22 Issue E dated 19 January 2009 AWD23 Issue F dated 27 January 2009 AWD24 Issue F dated 16 July 2009 AWD25 Issue A dated 23 October 2008 AWD26 Issue E dated 25 May 2009 AWD27 Issue B dated 6 February 2009 as amended by landscape plans numbered DA01-p12, DA02-p4 and DA03-p4 dated 30 August 2010, prepared by Noel Bell, Ridley Smith and Partners; and Plan of Subdivision of Lot 2 DP 619776 and Lot101 DP 1067984, dated 11 October 2007, prepared by Robert Lightfoot Surveyor, except where amended by the following conditions. (Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information)

C23. The maximum RL of the carport structure shall be RL 16.9 AHD measured at top of roof retaining wall of carport. Details showing compliance with these requirements shall be included in the plan submitted to the Certifying Authority for approval with the Construction Certificate. (Reason: To reduce impact on Heritage item at 29 Shellcove Road and allow for sufficient soil depth for low growing plants)

C24. Landscaping works on the site are to be undertaken generally in accordance with landscape plans numbered DA01-p12, DA02-p4 and DA03-p4 dated 30 August 2010, prepared by Noel Bell, Ridley Smith and Partners with the details amended specifically as follows: - no screening (landscape or otherwise) along the northern edge of the upper level balcony that would exceed a height of 1.5m above the floor level of the balcony. - The top of the retaining wall to the east of the lower terrace area shall have a minimum height of RL 7.5 AHD. - The increase in the southern boundary wall adjoining the garage is to be deleted. - Soft landscaping to reflect the requirements of C27 is to be provided. - RLs are to be included. Details showing compliance with these requirements shall be included in the landscape plan submitted to the Certifying Authority for approval with the Construction Certificate. (Reason: To ensure that landscaping and the dwelling relate to adjoining properties and the public domain in a satisfactory manner.)

C25. The maximum RL of the proposed development shall be RL 18.8 AHD measured at roof peak of lift overrun, RL 17.4 AHD measured at top of main roof of dwelling. Details showing compliance with these requirements shall be included in the plan submitted to the Certifying Authority for approval with the Construction Certificate. (Reason: To reduce impact on Heritage item at 29 Shellcove Road and 31A Shellcove Road, view sharing, bulk and scale)

C27. The unauthorised pool and pool equipment room shall be demolished and be replaced with soft landscaping. The unauthorised paving of the driveway in front of the dwelling shall be removed and be replaced with soft landscaping. The paving on the driveway shall be sufficient only to provide vehicle access to the carport and allow for a single turning bay to permit vehicles to leave the property in a forward direction. The driveway paving shall be no closer than 6.5m from the western elevation of the dwelling. Details showing compliance with these requirements shall be included in the plan submitted to the Certifying Authority for approval with the Construction Certificate. (Reason: To provide for increased soft landscaping to meet the objectives of the planning controls relating to landscape areas)

C28. The top of the retaining wall to the east of the lower terrace area shall have a minimum height of RL 7.5 AHD. Details showing compliance with these requirements shall be included in the plan submitted to the Certifying Authority for approval with the Construction Certificate. (Reason: To increase amount of masonry at the base of the dwelling to be more consistent with the Heritage Item, Conservation Area and Council's DCP controls)

      Annelise Tuor
      Commissioner of the Court

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.