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[2013] NSWLEC 1058
Land and Environment Court (NSW)
2013-03-26
Original judgment source is linked above.
Mr M Staunton (Respondent) Gadens Lawyers (Applicant)
Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 11239 of 2012
Judgment 1The applicant has development consent from the Court for the construction of a large dwelling and separate cabana on a corner site at 40 Gardyne Street, Bronte (Podgornik v Waverley Council [2012] NSWLEC 1176). The consent was granted on 25 June 2012 and was subject to a deferred commencement condition. The condition required the deletion of the third storey because it extinguished the public views to Tamarama headland and ocean from the lower landing of the Gardyne Street stair/walkway. 2The applicant now seeks to modify the development consent to incorporate a redesigned and reduced third storey (as well as a number of non-substantive modifications). The modification application is made directly to the Court under s 96(8) of The Environmental Planning and Assessment Act 1979 (The Act). 3The applicant contends that the proposed redesign minimises the impact on the views enjoyed from the public domain because it retains the view to the land /water interface including Tamarama headland, as well as the ocean horizon. The Council does not support the modification to incorporate the proposed third storey. It contends through its town planner, Mr Nash that it severely impacts on the ocean views from the public domain. The applicant's consultant town planner Mr Darroch argues to the contrary. Their joint report is exhibit 3. 4The view loss from the public domain is the single issue in these proceedings. 5The Registrar directed that this application be dealt with under s 34AA of the Land and Environment Court Act 1979 (LEC Act). However, the parties were unable to resolve the matter by conciliation so it proceeded to a hearing under s 34AA (2)(b)(i). In order to understand the view impact from the public domain the Court had two views of the site and locality. The first view was without height poles in place; and, the second view was after height poles had been erected to demonstrate the height of the third storey. On each occasion the Court, the parties and the experts walked along the Gardyne Street stairs/walkway via Thomas Street and through the laneway to the bottom landing of the stairs and down Pacific Street. At each view it heard from the objectors to the proposal. They are very concerned about the impact of the third level on the public views from the lowest landing of the Gardyne Street stairs/walkway.
Changes in circumstance since the earlier proceedings 6The Council's statement of facts and contentions dated 27 February 2013 sets out the background to the application and planning controls. It records two relevant changes in circumstance since the earlier proceedings. The first relates to the alteration to the design for the proposed third storey and, the second, relates to a change in the planning controls for the site. 7The applicable height and FSR controls are now set out in the Waverley Local Environmental Plan 2012 (LEP) as the Waverley Development Control Plan 2010 (2010 WDCP) has been repealed. The maximum height of 8.5 m in the LEP is the same maximum height as was previously permitted under the 2010 WDCP. The proposal complies with the height control in the LEP. 8The maximum FSR for this site is unchanged at 0.5:1;and, the approved development is approx 26% below the permitted FSR, even with an approved dwelling of some 440 m2 (excluding the large terraces and courtyard). 9The development has a flat roof. The maximum height control for a building with a flat roof is 7.5 m under Pt 1.2 Control (b) the Waverley Development Control Plan 2012 (WDCP 2012). The third storey exceeds the height control by about 750mm at its eastern elevation; otherwise, it complies with the control (exhibit 2 p 3 para 2.1.1.3).
Council's submissions 10The Council contends that the planning controls in the WDCP 2010, which sought to maintain views from public places, and which were specifically applicable to the Bronte locality, are now local government wide. It asks the Court to have regard to the detailed introduction to the height control at Pt 1.2 of the WDCP 2012 which states: "Achieving the maximum building height may not be appropriate in all cases and should not be considered as prescribed or allowable regardless of circumstances (exhibit 1 p172); and, also to the Objective in the WDCP "to minimise loss of views from and overshadowing of public places" 11Part 1.9 of WDCP2012 deals with Views and provides: "1.9 Views Many properties in Waverley enjoy local and district views, including those to Sydney Harbour, beaches, the coastline, ocean and open space. Views are often available from public places and private properties situated a considerable distance from proposed development. It is generally accepted that views do not 'belong' to anyone or any property, nor is a view the exclusive right to any one property or to certain individuals. View sharing' is an important principle to consider when developing a property. Objectives (a) To minimise the impact on existing views and vistas enjoyed from existing residential development and from the public domain. (b) To encourage view sharing as a means of ensuring equitable access to views from private dwellings (c) To maintain views from public places of landmark or iconic features. Controls (a) Existing views and vistas available from the public domain, including but not limited to ocean, harbour, beach, city and parks views are to be maintained where possible by the design of buildings. (b) Existing views of landmark or iconic features from the public domain (such as Sydney Harbour, Opera House, Harbour Bridge, and Bondi Beach) are to be maintained and where possible, enhanced. In some circumstances, complying with maximum development controls may not be achievable if an iconic view is impeded. (c) New development is to be designed and sited so as to enable a sharing of views with surrounding dwellings particularly from habitable rooms and decks. Where views are enjoyed by a neighbouring property across a proposed terrace, balcony or deck, it may be appropriate to exclude a privacy screen to enable the view to be maintained. 12The Council rightly contends that there has been no change in circumstances in relation to the available view or the frequency with which the public use the stairs. The only relevant change is the design of the third level. 13It is agreed that the third level exceeds the maximum height control of 7.5 m in Pt 1.2 Control (b) of the WDCP 2012 (exhibit 1 at p172) on its eastern elevation (exhibit 3 p 3 para 2.1.1.3). But In all other respects it complies. It is also agreed that the view impact is caused by the complying part of the third storey and not the area in breach of the control. However, the Council does not accept Mr Darroch's assessment that the design minimises the impact on existing views from the public main in accord with Objective (a) of the WDCP by maintaining the view to the Tamarama headland and ocean horizon. Or his evidence that there is no further opportunity to amend the design to reduce the height and still provide an appropriate sized guest bedroom/study. 14The Council submits that the view obscured by the third storey is both landmark and iconic. Therefore, the relevant Control (b) in Pt 1.9 of the WDCP requires "Existing views of landmark or iconic features from the public domain are to be maintained and where possible enhanced" However, if the Court considers the views not to be iconic or landmark then the relevant Control (a) in Pt 1.9 of the WDCP requires "existing views and vistas available from the public domain, including but not limited to ocean, harbour, beach, city and park views are to be maintained where possible by the design of buildings." 15The Council submits that the proposal does not enhance the existing views because it removes existing views. In particular, it contends that it impacts on the public view of the curtilage to Tamarama headland and it fails to maintain the view of the ocean and the wave zone. The Council, relying on Mr Nash's assessment, submits that about 70% of the existing view is lost by the third level (exhibit 3 para 2.1.2.1). It asks the Court to accept that the impact is severe in terms of ocean view from the public domain. It rejects Mr Darroch's assessment that the site has further development potential because the approved dwelling falls short of the maximum FSR. The Council submits that the "cold hard reality" is that the dwelling is almost 440m2 in area and large enough for this site. 16It is the Council's case that the loss of the ocean view for a matter of seconds along the stairway and walkway is not justification for an approval of this third level. It submits that some members of the public may wish to linger on the lowest landing to enjoy the ocean view. It invites the Court to apply the planning principle in Rose Bay Marina v Woollahra Municipal Council [2013] 1046 when assessing the view impact on the public domain and focus on the context of the view impact. In this case the context is that the view is dynamic. It is a frequently used public stairway. The roof of 40 Gardyne Street, the garage of 42 Gardyne Street and the large fig frame the view at issue. The area of the public domain with which we are concerned is a landscape conservation area. Its context includes the views from the conservation area. The particular area is a landing in a stairway designed to allow people to pause and take in the magnificent view of the headland and ocean. 17The Council submits that the proposal does not wholly comply with the maximum height limit in the WDCP and this is because it is not possible to provide a room within a compliant building envelope on this site. The Council believes that the third level will severely disrupt the view from the public domain. It submits that in circumstances where the approved dwelling is close to 440m2 the loss of that public view cannot be justified to accommodate a study/guest bedroom. In assessing the impact it asks the Court to "...balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from a reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from an unreasonable or unnecessary proposal. For example, adding a balcony to the living room of a dwelling that has no other balconies is a more reasonable proposal than adding a balcony to a dwelling that already had six balconies." Pafburn v North Sydney Council [2005] NSWLEC 444 at [21].
Applicant's submissions 18The applicant contends that the views at issue cannot be described as iconic or landmark views. They are ocean views and the relevant Control in Pt 1.9 of the WDCP2012 requires them "...to be maintained where possible by the design of the buildings". 19Mr Darroch's evidence is that the design achieves Objective (a) in Pt 1.9 of the WDCP because it minimises the impact on existing views and vistas from the public domain. It also, "where possible" achieves Control (a) in Pt 1.9 of the WDCP because it maintains by design the existing views of the headland and ocean horizon from the public domain. The applicant submits that an assessment of view loss from the public domain is directed to accept that there will be some impact from residential development on public views and the effect is to be minimised. 20This design differs from the original application in that the entire land/water interface is maintained including the view to the Tamarama headland, as well as the ocean horizon. The current design overcomes the concern that the Court had in the earlier appeal because it does not "extinguish" the views from this individual location (which must be considered in the context of dynamic views along the walk to the pool and the beach.) And it is the complaint component of the portion of the third level that obscures the greater majority of the open water view (para 2.1.2.27 of exhibit 3). 21The applicant takes issue with Mr Nash's evidence that: "overall it is my view that the ocean views currently enjoyed over the subject site from users of the laneway between St Thomas Street and Gardyne Street will be significantly impacted by the proposed development and given the non compliance with the building height control, the proposed addition should be refused." It submits that it fails to address the evidence of Mr Darroch that a complaint building would have a very similar effect. However, the prospect of a compliant building is nil without alteration to the lower levels and the amenity of those floors. 22Relying on the guidelines in the Rose Bay Marina case the applicant identifies the nature and scope/extent of the existing views and submits that the walk on the path from McPherson Street or other premises in the area, to the beach cafes, constitutes the view. At times it is the beach, land/water interface, wave zone, and headland; coastal walk ocean and ocean horizon. The view, which is interrupted, is from the lowest landing and part of the steps - it is for a number of seconds in a 5 to 10 minute walk. The actual view contains the headland and there is no iconic view loss. A lower order view is lost for a very short time over a whole dynamic view. The applicant contends that the view impact is a mild negative impact over the course of the public walk for a few seconds. 23By way of conclusion, the applicant submits "by assessment against the planning principle in Rose Bay Marina (noting the difference in the controls maintenance vs minimise) the applicant submits that for a few seconds only along the 5 to 10 minute walk the distant views over the residences and through the vegetation that constitutes the headland and land /water interface, ocean and horizon, in that part of the ocean will be obscured, but the headland, land /water interface and horizon views will be maintained. This is a pleasant part of the experience, which will be maintained but modestly diminished in that the larger part of the ocean will be obscured. In the context of the whole walk this impact does not warrant refusal of the application". 24According to Mr Darroch, the loss of the upper level disturbs the balance and aesthetic of the building (p 14 para 2.2.2.1 of exhibit 3). In his expert assessment the third storey provides an appropriate relationship with the adjoining higher property at 42 Gardiner Street. Without the third storey, he believes that the higher dwelling at 42 Gardyne will dominate the applicant's property and the streetscape particularly when viewed from Pacific Street. 25The proposed upper level allows some improved view sharing, which offsets the restricted views available from the approved ground floor and finishes and balances the building providing a more appropriate transition from the bulk and scale of its neighbour at 42 Gardyne Street.
Consideration 26The WDCP discusses different types of views and vistas in Pt C 1.9. Although the experts agree in this case that the view loss can generally be identified as the expansive ocean view from the bottom landing of the Gardyne Street Stairs/walkway they do not agree about the significance of the view at issue. Having considered the provisions of the WDCP and the identified views listed in the Control as examples of an iconic or landmark view (including the Sydney Opera House or Bondi Beach) I cannot accept on the evidence that the view at issue in this case is either iconic or landmark. In my opinion it is an ocean view from the public domain that is "...to be maintained where possible by the design of buildings." While I agree with the Council that the current DCP Control is very similar to the requirement in the earlier DCP as discussed in the earlier judgment at para 18, the words "where possible", within the current Control must contemplate that development can impact on ocean views in particular circumstances. 27In this case the Council concedes that it is not possible to construct the proposed third storey within a complying envelope. In order to achieve an appropriately sized guest room/study it is necessary to go partly beyond the envelope. However, as Mr Darroch points out it is the complying component of the third storey that obscures the view of the ocean from the lowest landing of the public domain. Not the parts of the third storey that do not comply with the WDCP. 28The issue then becomes one of an assessment as to whether the loss of the ocean view for a few seconds in a walk to the beach or the shops along the public Gardyne Street stairs/walkway is acceptable on a merit assessment with the WDCP being a focus of that assessment. 29Based on the evidence it is fair to say that the architect has by design sought to maintain where possible the existing views to the ocean from the public domain (consistent with Control (a) in Pt 1.9 of the WDCP). The proposed third storey no longer extinguishes the view of the Tamarama headland and ocean horizon from the critical point of the lowest landing of the Gardyne stairs/walkway. Reducing the height of the third level by about 350mm from RL40.2 to RL39.85 and reducing its width have retained it. A sloping wall rather than a vertical wall to Gardyne Street also ensures that it compiles with the maximum 7.5m height control at the Gardyne street frontage. The evidence is that the planners have no issue with the third level within the Gardyne streetscape. In fact Mr Darroch believes it is a necessary element to improve the interrelationship with the property at number 42 Gardyne St particularly when viewed from Pacific Street. I accept his evidence. 30It is solely a question of the acceptability of the view impact in the circumstances of this case. 31To understand the impact of the view loss the parties' experts have comprehensively considered the view impact in its context at pp 5 - 14 of their joint report. They agree that the nature and scope of the existing public domain views should include the extent of the public walkway from McPherson Street through Pacific Street. They also agree that the view from the public domain along the Gardyne Street walkways is dynamic. It is used frequently because it is a public stairway to shops and the beach/public pool. It is also a landscape conservation area under Council's planning controls. At the critical point (the lower landing of the stairs) the current view from the public domain is of the Tamarama headland and ocean. 32The view at issue is a small part of a dynamic view over a 10-minute walk. The experts say as much at p 7 2.1.1.9 of the joint report. I accept the evidence of the applicant that the redesign has where possible minimised the impact on the public view. The headland and its curtilage will be visible as will the ocean horizon. I also appreciate (having carried out the exercise) that if you were to climb up a stair or two from the lowest landing the ocean view returns in the context of this dynamic view through the fig tree and over the existing residences. 33Based on the evidence, including that taken at both Court views and after a consideration of the objectors' submissions I do not find the view impact in this case to be unacceptable on a merit assessment under s 79C of the Act. The fact that the third level will be used as a guest room/study is not a basis to refuse this application. The development is more than compliant with the FSR control. It is not unreasonable to approve the third level in circumstances where it has been designed to maintain views where possible. The complying component of the proposal causes the view impact. 34I accept Mr Darroch's assessment that an approval of this third level will better integrate the dwelling with the adjoining development. It will not have any adverse streetscape impact. Nor will it adversely impact on the amenity of the adjoining residential flat building in Pacific Street. The Council does not raise any issue in this regard. The residents who addressed the Court voiced their objections to the approved dwelling but this application cannot undo that approval. This hearing is about the modifications identified. Having said that the objectors do not accept the impact of the proposal on the public view from the lowest landing of the Gardyne stairs/walkway. But to assess the impact of the proposal on the public domain views one needs to identify the route along which the view is experienced and make the assessment against the whole and not just against the limited part as Mr Nash has done. The public views from the upper Gardyne Street south are panoramic and uninterrupted and have the distinction of being the only sitting and standing views. The public domain views from the junction of the laneway between St Thomas Street and Gardyne Street roadway can only be said to be enjoyed in motion because of the narrowness of the stairs and the volume of pedestrian traffic. 35I accept the evidence of Mr Darroch that the view from the middle and lower level landings must necessarily be identified as a view taken in motion as stopping to take in the view on the stair conflicts with pedestrian movement. The proposal before the Court offers view sharing and unlike the earlier design does not extinguish the view at issue. The design has maintained where possible the Tamarama headland view and ocean horizon view from the public domain. The size and shape of the third level's proportions is necessarily compromised. However, this is the best vantage point of this unique steep consolidated site and it is understandable that the applicant would like to enjoy that view. Each case must be assessed on its individual merits and this is a unique and topographically constrained site. 36I accept Mr Darroch's expert assessment that the proposed third storey provides an appropriate transition from the bulk and scale of the neighbour to the south at 42 Gardyne Street. 37I have considered the visual and physical impact of the third level upon the setting of the conservation area as required under Pt 8.9 of the WDCP2012 and the planners raise no issue about the height and scale of the development as it relates to the topography and street character. After a consideration of the relevant objectives and provisions relating to streetscape in C1.5 of WDCP2012 I accept their agreed position expressed at p14 para 2.2.1.3 of exhibit 3 that "...the 2m setback of the third level from the street frontage over the approved double garage assists its presentation to the street and ensures it remains relatively subservient to the structure on the common boundary with No 42 which has a pitched roof masonry wall rising from RL 38.90 to RL 41.51. The roof level of the proposed addition is at RL 39.85 and will probably be consistent with the adjoining wall where it intersects 2m back from the frontage". The joint position of the experts is that the proposal satisfies the Control C1.5(c) and (e) has the WDCP 2012. 38The Council and the experts raise no issue with the other non-substantive modifications proposed in this application. Therefore, I find them to be acceptable on their merits. Based on the above, and my assessment of the relevant considerations under s79C (1) of the Act, I have decided to grant consent to this application. I make the following orders: (1)The appeal is upheld. (2)The deferred development consent granted to DA -130/2011 by the Court on 25 June 2012 in proceedings no 10060 of 2012 is modified in accordance with the plans identified in the conditions in annexure A. (3)The exhibits are returned except exhibits A and 2. Susan Dixon 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. Decision last updated: 08 April 2013
Podgornik
Waverley Council