The evidence
12The Court visited the site and heard from objectors, whose key concern was the impact of the roof terrace on their privacy and views. The owners of 14 Bolingbrook Parade and 23 Lauderdale Avenue were concerned that the Approved Development reduced views of the land water interface from their properties and that the proposed balustrade and privacy screens would further reduce the views, particularly if structures such as umbrellas were placed on the terrace, which they considered to be unavoidable given the orientation of the terraces.
13The Court heard expert planning evidence from Mr G Hugo, for the council, and Mr G Boston, for the applicant. The experts agreed that the potential visual privacy impacts are limited to 4 and 8 Fairlight Crescent and that these were satisfactorily addressed by the proposed privacy screen and setback of the terraces. However, Mr Hugo maintained his concern about the potential aural privacy impacts of the proposal and that these had not been adequately assessed. In Mr Boston's opinion, the use of the terraces would be consistent with normal residential activities and would not result in unacceptable aural privacy impacts.
14The experts agreed that the potential view impacts are limited to 14 Bolingbrook Parade and 23 Lauderdale Avenue. They agreed that the privacy screen between the terraces for units 5 and 6 would not result in view loss, although Mr Boston suggested that the screen could be reduced in length by 300mm to ensure it would not protrude any further than the Approved Development when viewed from 14 Bolingbrook Parade.
15Mr Hugo's main concern was the view loss to 14 Bolingbrook Parade may result from the balustrade and privacy screen adjoining the terrace to unit 5. In his opinion, the information was inadequate to accurately assess the impact but he considered it would further reduce the water view and as it exceeded the height control was unacceptable. Furthermore, Mr Hugo considered that structures such as umbrellas would also impact on views and that the proposed conditions to restrict structures on the terrace would result in enforcement issues for council.
16Mr Boston stated that the terraces had been reduced in size in response to detailed analysis of the potential view impacts. The glass balustrade and privacy screen would result in a minor loss of the foreground and water views but would not impact on the main view corridors, particularly the land water interface and appropriate view sharing was achieved. In his opinion, the small size of the terraces and the proposed conditions would limit structures above the height of the balustrade and not result in any further loss of view.
17Mr Staunton and Mr Shneider made competing submissions on whether conditions could be imposed that would prevent structures or furniture being installed or maintained on the upper rear terrace of units 5 and 6 that exceed the height of the balustrade around the terrace. Mr Shneider submits that cl 1.20 of State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (SEPP) would have the effect of suspending the conditions or any bi-laws and that structures could be erected under the SEPP without consent. Furthermore, Mr Shneider submits that the condition would require enforcement action by council to ensure compliance.
18Whereas, Mr Staunton submits that the development must be carried out in accordance with the conditions of consent and the proposed bi-law would alert prospective purchases to the conditions. The SEPP does not set aside conditions of consent and it must be assumed that the conditions will be complied with. In the event that they are not, council could enforce them, which is no different to other conditions of consent.
Findings
19Clause 4.6 of LEP 2013 provides:
4.6 Exceptions to development standards
(1) The objectives of this clause are as follows:
(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,
(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.
(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:
(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
(b) that there are sufficient environmental planning grounds to justify contravening the development standard.
(4) Development consent must not be granted for development that contravenes a development standard unless:
(a) the consent authority is satisfied that:
(i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and
(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and
(b) the concurrence of the Director-General has been obtained.
(5) In deciding whether to grant concurrence, the Director-General must consider:
(a) whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and
(b) the public benefit of maintaining the development standard, and
(c) any other matters required to be taken into consideration by the Director-General before granting concurrence.
20Clause 4.6 permits exceptions to Height standard in cl 4.3 of LEP 2013. It is similar to an objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) in that it is a precondition, which must be satisfied before the proposed development can be approved.
21Clause 4.6(3)(a) of LEP 2013 requires the applicant's written request to demonstrate that "compliance with the development standard is unreasonable or unnecessary in the circumstances of the case". It uses the same language as SEPP 1. Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827 deals with the requirements to uphold an objection under SEPP 1. At [42] to [43], His Honour discusses ways of establishing that compliance with the standard is unreasonable or unnecessary, relevantly he states:
42 An objection under SEPP 1 may be well founded and be consistent with the aims set out in clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard...
43 The rationale is that development standards are not ends in themselves but means of achieving ends. The ends are environmental or planning objectives. Compliance with a development standard is fixed as the usual means by which the relevant environmental or planning objective is able to be achieved. However, if the proposed development proffers an alternative means of achieving the objective, strict compliance with the standard would be unnecessary (it is achieved anyway) and unreasonable (no purpose would be served).
22The principles in Wehbe are relevant to establish whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case as required by cl 4.6(3)(a), namely whether, despite the non compliance, the proposal meets the objectives of the standard.
23The experts disagree on whether the proposal meets the objective 1(c)(ii) of the Height standard, which provides:
(c) to minimise disruption to the following:
....
(ii) views from nearby residential development to public spaces (including the harbour and foreshores),
.....
24I accept Mr Boston's evidence that the view loss of the proposal has been minimised by analysis of the views, a reduction in the size of the terrace and conditions of consent restricting further structures. The Approved Development exceeds the height limit and intrudes into the views of the land water interface. As I understand, the development was approved on the basis that it was generally within the roof form of the existing building and the view impact was found to be acceptable. The proposal before the Court does not further impact on the critical land water interface views and view corridors. While there would be a minimal loss of views to 14 Bolingbrook Parade from the privacy screen above the parapet, this is a foreground water view and would not materially impact on the expanse of water views enjoyed from this property.
25I accept Mr Staunton's submission that the conditions that restrict structures on the terraces can be imposed and would not be set aside by the SEPP. The conditions are reasonable and, it must be assumed that they will be complied with and enforced, if necessary, similar to other conditions of consent.
26Mr Hugo considers that any further view loss from the development is unacceptable as the proposal exceeds the height limit. However, the objectives of the standard seek to minimise view loss, not eliminate it, and I accept that this has been achieved to a reasonable level.
27Other than satisfaction of the objective in cl 4.3(1)(c)(ii), the experts did not raise any issues with the Applicant's request for variation of the height standard under cl 4.6 of LEP 2013.
28Pursuant to cl 4.6(4)(a) of LEP 2013, I am satisfied that consent may be granted. Firstly, the Applicant's written request has adequately addressed the matters required to be demonstrated in subclause (3). Secondly, the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development within the R1 Residential zone.
29The merit issues in dispute between the parties principally relate to view loss, which for the reasons discussed above, I have found to be satisfactory and would meet the requirements in LEP 2013 and DCP 2013. In particular, cl 3.4.3 of the DCP and the principles in Tenacity Consulting v Warringah Council [2004] NSWLEC 140.
30Mr Hugo's concern about aural privacy would not be a reason to refuse the application. The terraces, as amended, are not large, are off bedrooms and would be used for purposes associated with residential use of the premises. The aural privacy impacts are therefore reasonable. As the merit issues are acceptable, the proposal would not be contrary to the public interest.
Conditions
31The only condition in dispute was Condition 3, which requires the non trafficable pebble finished flat roof around the terraces to be pitched to ensure that people cannot use it. I accept Mr Staunton's submissions that this is unnecessary. The balustrade around the terraces restricts access to the roof, which is to be pebble finished and non trafficable. Furthermore, the parapet around the roof is only 400mm high and would not provide an adequate balustrade if people were to use that part of the roof. The condition is to be amended to require that the roof be non trafficable and not used.
32In addition, the deferred commencement condition has been amended to reduce the length of the privacy screen between units 5 and 6 by 300mm, as suggested by Mr Boston.