Sammut Developments Pty Ltd v Sutherland Shire Council

Sutherland Shire Local Environmental Plan 2000 Draft Sutherland Shire Local Environmental Plan 2004 LEGISLATION CITED: Environmental Planning and Assessment Act 1979 State Environmenmtal Planning Policy No. 65

Deller Homes v Sutherland Shire Council [2004] NSWLEC 66; Project Venture Developments v Pittwater Council [2005] NSWLEC 191; CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140; Parsonage v Ku-ring-gai Council [2004] NSWLEC 347

DATES OF HEARING: 15-16/08/2005 and 19/08/2005

APPLICANT Mr M Craig, SC SOLICITORS Maddocks LEGAL REPRESENTATIVES: RESPONDENT Mr G Green, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10266 of 2005 Sammut Developments Pty Ltd v Sutherland Shire Council

The appeal 1 Commissioner: This appeal relates to Development Application No. 04/1127, which is for the demolition of two existing two-storey residential flat buildings and associated garage structure and the construction of a four-storey residential flat building with basement carparking ("the proposed building") at 18 - 20 Coast Avenue, Cronulla. More particularly the proposal includes a single three-bedroom dwelling on each level. Each dwelling is to have three carparking spaces in the basement plus one visitor carparking space. Strata subdivision is also proposed The site 2 The site comprises Lots 9 and 10, DP 4878. It is somewhat irregular in shape with a frontage of about 27 m to Coast Avenue, a frontage to The Esplanade of about 25 m and an area of 1,293 sq m. It falls approximately 3 m from the Coast Avenue frontage to The Esplanade.

3 The site is situated in close proximity to the South Cronulla coastline enjoying panoramic ocean and coastal views. The locality is characterised by a mix of high-density residential flat development of varying architectural styles and ages. These residential flat buildings range in height between two and nine-storeys. More particularly the site is adjoined to the south by a seven-storey residential flat building and to the north by a four-storey residential flat building. Opposite the site in Coast Avenue is a two-storey attached dual occupancy building and a nine storey residential flat building. Planning controls 4 The site is zoned 2(c) Residential under Sutherland Shire Local Environmental Plan 2000 ("the LEP") and in this zone residential flat buildings are permissible with development consent. It is also situated in a Foreshore Scenic Protection Area. The objectives of the 2(c) zone are: A high-density residential environment: (a) in close proximity to the major shopping centres and railway stations, and (b) with co-ordinated, efficient and economical development of residential flat buildings of high quality design, and (c) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity 5 Clause 19 of the LEP applies to the Foreshore Scenic Protection Area and contains the following two relevant objectives: 19 (1) the objective of a foreshore scenic protection area is to limit the scale of development and protect the landscape and visual character of foreshore areas of Sutherland Shire; (3) buildings in a foreshore scenic protection area are required by the development control tables to have more landscaped area than buildings outside the area.

6 Clause 30 of the LEP provides that: 30 When assessing the impact of residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied that those matters have been adequately addressed by relevant documentation submitted to it: (a) the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy, (b) the effect of the proposed development on the quality of the streetscape, (c) the cumulative impact of successive developments on the general character of the neighbourhood (d) the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area, (e) the retention and enhancement of existing vegetation, (f) any adverse impact on the natural and built environment, (g) the location of the proposed development in relation to potential risks, including flooding, bushfire and other hazards, (h) the impact that the proposed development may have on any public area or water body from loss of sunlight, views and visual amenity. 7 Clause 34 of the LEP deals with building height in residential zones as follows: 34(1) The objectives of the height limits are to: (a) achieve consistency in the scale of buildings within each zone, and (b) minimise adverse impacts from development on adjoining or nearby properties due to loss of privacy and views, and overshadowing, and (c) relate the building to the typography of the site, and (d) … (2) The height limits are: (a) … (b) before granting consent for development within the 2(c) Residential Zone, the consent authority must consider any height limit specified in the development control plan applying to the land. (c) … (d) … (e) basement carparking must not exceed 1.5 m above ground level to the top of the slab. 8 Clause 35(2) of the LEP imposes a maximum floor space ratio of 1:1 for the 2(c) zone. However cl 39 (a) requires that the applicable floor space ratio for any particular site should be calculated by applying a prescribed formula to the site area. This produces an undisputed maximum floor space ratio of 0.75:1 for the site.

9 The associated objectives of the floor space ratio development standard are contained in cl 35(1) of the LEP: 35(1) (a) to provide a degree of consistency for existing residents as to the size and bulk of potential buildings in the neighbourhood, and (b) to allow buildings of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of the zone. 10 Clause 37 requires a minimum allotment size of 1800 sq m and cl 38 requires a minimum lot width of 30 m for residential flat buildings in the 2(c) zone. Whilst cll 37 and 38 were initially in issue these were not pressed as such.

11 The site is also subject to Draft Sutherland Shire Local Environmental Plan 2004 ("the draft LEP"). The draft LEP includes this part of Coast Avenue in the Multi-Dwelling B Zone and in this zone residential flats require development consent.

12 The draft LEP has been appropriately exhibited. A report pursuant to s 68 of the Environmental Planning and Assessment Act 1979 ("the EPA Act ") together with the draft LEP the was forwarded to the Department of Planning ("the Department") in March 2004. Since that time Department has responded, expressing a number of concerns, requesting council to reconsider these matters. The council has since amended the draft LEP and sought a new s 65 Certificate under the EPA Act to enable further exhibition.

13 Also applicable to the site is Development Control Plan for Residential Flat Buildings in the 2(c) Residential and 9(a) Mixed Residential/Business Zones ("the DCP").

14 The objectives of the DCP in cl 3 are: (a) To ensure residential flat developments are designed to a high standard and that each successive development contributes to an improvement in quality of the urban environment; and (b) To ensure residential flat buildings are integrated into their locality to enhance living environments for existing and future Shire residents; and (c) To ensure that residential flat buildings are environmentally appropriate within the context of the Sutherland Shire; and (d) To ensure that residential flat developments provide quality living environments for residents of the development. 15 Clause 10 of the DCP deals with the siting and scale of residential flat buildings and the relevant objectives are: + Sufficient separation between buildings to protect privacy and sunlight access to neighbours. + Development that has adequate space for landscaping, privacy, solar access, private open space and an attractive and consistent streetscape. + Developments with appropriate integration, building mass, form and articulation which is sympathetic to the prevailing character of surrounding buildings and the streetscape. + A consistent scale of development that relates to the topography of the land and optimises views for residents.

16 Clause 10.1 whilst dealing with setbacks includes a note associated with a setbacks diagram as follows: Where a maximum height is not specified in a DCP, the maximum height is 3 storeys. 17 Relevantly, storey is defined in the LEP as: (a) the space between two floors, or (b) the space between any floor and its ceiling order roof above, or (c) foundation areas, garages, workshops, store rooms and the like, when the height between ground level and top of the floor above is 1.5 m or more. A storey which exceeds 4.5 m is considered as two storeys 18 Clause 10.2 of the DCP under the heading Height provides that: The height controls for residential flat building developments aim to ensure that new buildings fit into the existing streetscape. 19 Under the heading Development Standards in cl 10.2 reference is made to cl 34(2)(b) of the LEP and whilst there are particular height standards provided for the 9(a) zone no height standard is provided for the 2(c) zone. However under the heading Design Controls the following provision is relevant to this proposal: Where a maximum height is not specified in a site specific development control plan, the maximum height for a residential flat building is three (3) storeys. 20 There is no site specific development control plan relevant to this site. Also included under the heading Design Controls is a diagram of a three-storey building with basement. Notes on this diagram refer to the 4.5 m maximum floor to ceiling height and the maximum 1.5 m from existing ground level to first floor level for basements.

21 Relevantly the Design Controls provide that: The height of the development should be consistent with the surrounding development and should be in context with the streetscape including the height of buildings on the opposite side of the street. The height of the development must not dominate or detract from the natural landform. Buildings should be sited in relation to the site's natural context and topographical features. The height of a residential building should not detract from the amenity of adjoining residents. 22 Under the heading Streetscape and Urban Design, cl 11 contains a general discussion as to the importance of streetscape and urban design. It particularly deals with the relationship of structures to each other and to the public domain. It notes that: New development needs to reinforce the character and scale of existing buildings in the visual spaces of the domain that are likely to remain in the longer term and improve as far as possible. The landscape and types of planting in the street must also be reinforced and improved… 23 The streetscape and urban design objectives are: 1. Development, that makes a positive contribution to a locality by high quality, contextual urban design and improved streetscape. 2. Development, that when viewed from the street (or other public area) is compatible with the character and scale of any existing buildings to be retained on the site, and similar residential development to the immediate vicinity. 3. Materials and design elements should be complimentary to the existing development so as to contribute to and enhance neighbourhood and streetscape character. 24 The DCP also contains various other requirements including building setbacks and landscaped area. None of these requirements has been identified as a matter of concern in the statement of issues or in the reports of the two experts and in this context I accept that the proposal is satisfactory.

25 One of the initial issues in the case involved the non-provision of a verification statement pursuant to State Environmental Planning Policy No 65. This has now been provided and apart from concerns that coincide with the remaining issues in the case, no other issues of concern have resultantly arisen.

Advertising 26 The application was advertised and at least 15 letters of objection and three petitions were received. Matters of concern to these objectors include: + Loss of views as a result of the height of the proposed building and resulting loss of amenity and consequential likely reduced property values. + Overshadowing and resulting loss of amenity and clothes drying opportunities. + Excessive height and bulk and inappropriate appearance from Coast Avenue and The Esplanade. + Insufficient off street car parking resulting in additional on-street congestion and demand for car parking. + Non compliance with various planning controls The evidence 27 Expert town planning evidence was given by Mr G Hand on behalf of the respondent council and by Mr D Crane on behalf of the applicant. Expert urban design and town planning evidence was given by Mr N Dickson the Court-appointed expert and expert traffic and parking evidence was provided by Mr G Pindar another Court-appointed expert.

28 A number of residents also gave evidence when the hearing began on site, explaining their concerns in relation to the proposal. The Court visited a number of residents' homes to better understand their concerns especially those involving view loss. The issues 29 The amended statement of issues identified five separate issues involving: + Exceedance of the applicable maximum floor space ratio; + Exceedance of the applicable maximum building height, particularly the number of storeys; + Non-compliance with the applicable minimum lot size and width; + Adverse impacts on residential amenity; and + Issues raised by the objectors. 30 By the end of the hearing these issues devolved to the following: 1. The extent to which the proposed building exceeds the applicable maximum floor space ratio in the LEP and whether this exceedance is such as to warrant refusal of the application. 2. Whether the consequences of the proposed building, being four-storeys in height in contravention of the three-storey standard in the DCP would be such as to warrant refusal of the application. Floor space ratio 31 As indicated above, cl 35 of the LEP imposes a calculated maximum floor space ratio of 0.75:1 for this site. The three experts measured the floor space ratio of the proposed building as follows: + Mr Dickson 0.7710:1. + Mr Crane 0.9916:1 + Mr Hand 1.1820:1. 32 The reasons for the differences relate to whether floor space associated with the stairway, balconies and certain carparking spaces (including manoeuvring areas) in excess of council's requirements should be included in the calculation as gross floor area. Mr Dickson did not include any car parking spaces or the stairway or the balconies; Mr Crane did not include the stairway or the balconies; Mr Hand included all of these areas.

33 An objection pursuant to State Environmental Planning Policy No. 1 - Development Standards ("the objection") was prepared by Mr Crane in support of his calculated non-compliance with the 0.75: 1 floor space ratio.

34 That objection points out that whilst there are no stated objectives for the floor space ratio development standard in cl 39 of the LEP the relevant objectives can be found in cl 35 as follows: (1) The objectives of the floor space ratio requirements are: (a) to provide a degree of consistency for existing residents as to the size and bulk of potential buildings in the neighbourhood, and (b) to allow buildings of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of the zone. 35 Under the LEP floor space ratio and gross floor area are defined as: "Floor space ratio" means the ratio of the gross floor area of all buildings on a site to the area of the site. The site is taken to be only that part of the site zoned to permit the development for which the buildings are or are proposed to be used.

"Gross floor area" means the sum of the areas of each floor of the buildings on a site where the area of each floor is taken to be the area within the outer face of the external enclosing walls, excluding any of that area occupied by: (a) lift towers, motor rooms and stairwells within a basement or above the roof level, and (b) carparking needed to meet requirements of the council, up to 20 sq m per required parking space, and (c) storage areas need to meet requirements of the council, and (d) plant rooms, garbage storage areas, switch rooms or the like within a basement. 36 As described above the town planning experts disagreed as to what should be included as gross floor area for the purposes of the floor space ratio calculation.

37 Each of the dwellings in the proposed building has two terraces, which have sliding or pivot louvred screens ("the shutters"). These shutters can be adjusted so that they are not apparent at all or they can be extended for privacy and weather protection. In addition the external stair that provides access from the ground floor entrance and the basement to the residential levels of the building (a lift is also provided) is also to be provided with sliding louvred screens.

38 Mr Hand was of the opinion that these terraces should be included in the floor space ratio calculations regardless of whether the shutters are operable or not. He said that: In my opinion floor space ratio controls are directed toward limiting bulk and scale of development. External enclosing walls define the volume of a building and I do not agree that operable slat devices will be so recessive in appearance that they will not define a larger structure than one with open balconies. I believe it is more about perceived building bulk than enabling full cross ventilation and like penetration to the balcony areas. 39 Mr Hand also said that the stairway should be included in the floor space ratio calculation because the shutters will be closed for the majority of occasions for security and weather control purposes. The stairway thus also adds bulk to the building.

40 Mr Crane referred to the flexibility and adjustability of the shutters in support of his opinion that they do not exhibit the characteristics of enclosing walls. Mr Dickson pointed out that the shutters have an important aesthetic function and said: My opinion as to what constitutes external enclosing walls and therefore what constitutes part of the gross floor area is based on the ability of the nominated screening devices to control the level of cross ventilation and like that reaches the enclosed balcony/terrace. It is my opinion that fully retractable and individually operable slat devices that enable full cross ventilation and do not prevent light from entering the balcony/terrace areas do not constitute external enclosing walls and, therefore would not contribute to a gross floor area calculation. On the other hand, devices that are capable of fully limiting the level of air and light penetrable to the balcony/terrace area should be regarded as an external enclosing wall.

41 I agree with the approach taken by Mr Crane and Mr Dickson in relation to the terraces and would extend this to the stairway. I have seen brochures depicting the kind of shutters intended to be utilised for this proposal and understand their form and nature and the degree of weather protection that they will provide. I also understand their extent and the manner in which they will be used.

42 In the circumstances I have decided that the shutters would not constitute external enclosing walls for the purposes of the definition of gross floor area. This is because I do not accept that they would provide the kind of enclosure anticipated by the definition, being that associated with the more usual weatherproof walls, doors and windows.

43 This finding however does not prevent the effect of the shutters being assessed on a merits basis when contemplating the likely bulk and scale of the proposed building.

44 As for the extra carparking spaces I agree with Mr Crane and Mr Hand that they should be included in the floor space ratio calculation. I would however in the context of the objectives the development standard in cl 35 disregard this floor space. As a consequence I believe that Mr Crane's floor space ratio calculation is more likely to be the relevant one for the purposes of this application and the SEPP 1 objection.

45 I have reviewed the SEPP 1 objection and agree that the proposal is responsive to the objective of the floor space ratio standard in cl 35(1)(a) of the LEP relation to size, bulk and scale. The proposed building will have bulk and scale that is responsive to that of its neighbours, especially those to the south and west and including those to the north. It is clearly a larger and bulkier building than its neighbours to the north but will provide, a transition between different sized buildings and the requisite degree of consistency will result. 46 Whilst there is more to be said about the height of the proposed building in its context it is sufficient to say at this point that it will be entirely appropriate.

47 The second objective of the floor space ratio standard in cl 35(1)(b) also involves buildings of sufficient scale, community expectations and the environmental capacity of the zone. This objective is difficult to interpret precisely and some clarification in the LEP would be of assistance. I nevertheless accept that this building will be of sufficient scale, and in terms of floor space will not exceed reasonable expectations and the capacity of the zone.

48 I also accept the analysis undertaken in the objection in relation to the objects of the EPA Act. I therefore agree that strict compliance with the floor space ratio development standard is unnecessary in the circumstances and the objection should be upheld.

49 In relation to the bulk and scale of the building generally, I acknowledge that if all of the shutters were closed the proposed building would appear bulkier by comparison with having all of the shutters open. In this regard I agree with Mr Dickson's observations that even if the terraces were included in the floor space ratio calculation the exceedance would be acceptable notwithstanding that they contribute to perceived bulk. This is made more acceptable, accepting as I do his contention that for most of the time the shutters will be open to various degrees providing further architectural interest to the building, in addition to that provided by varying setbacks, building articulation and other detailing. Whilst not critical, the now proposed landscape scheme within the required setback areas contributes to the acceptability of the bulk and scale of the building. 50 Concerns were also expressed that, as a result of the extra carparking spaces in the basement, the landscaping design would be unnecessarily restricted. However I am satisfied that the proposed landscaping is not adversely affected by the size of the proposed basement and provides a sufficient and satisfactory landscape setting for the building.

51 As indicated above the extra car parking spaces in the basement need to be included in the floor space ratio calculation. However, I would support the approach taken by Roseth SC in Deller Homes v Sutherland Shire Council [2004] NSWLEC 66 at pars 16 and 17. The basement as proposed, whilst projecting out of the ground where it presents to The Esplanade, would not in my opinion add to the bulk and scale of the building to any critical degree, noting also the effect of the landscaping scheme.

52 Incidentally, in relation to the provision of carparking spaces I agree that the number of carparking spaces provided in this instance is entirely appropriate given the size and nature of the dwellings proposed. To do otherwise would in my opinion almost inevitably increase demands for on-street parking, an undesirable outcome and a matter of concern to a number of residents. Building height Character and streetscape 53 When viewed from Coast Avenue, because the proposed building is at a level below that of the street it will present from some viewpoints as a three-storey building. Given the slope of the site, when viewed from The Esplanade it will present as a four-storey building above a landscaped podium (approximately1.2 m - 1.7 m).

54 Despite some appearances the proposed building is four-storeys and does not comply with the three-storey maximum height limit standard in cl 10 of the DCP.

55 As noted above cl 34 of the LEP does not contain any development standards in relation to building height. It does however require that for development within the 2(c) zone, the consent authority must consider any height limit specified in the development control plan applying to the land. In my opinion, this is simply a reference to certain provisions of the DCP, which are to be given weight as such. It does not elevate the three-storey standard in cl 10 of the DCP to the status of a development standard.

56 The objectives in cl 34 are nevertheless important and provide assistance in understanding and applying this height standard. Such objectives relevantly include consistency in the scale of buildings in the zone and the minimisation of amenity impacts on adjoining or nearby properties.

57 The applicant's arguments in support of this non-compliance are essentially twofold. First a proper interpretation of the provisions of the DCP in relation to number of storeys means that the actual height of the building would essentially fit within a building envelope of the kind shown in the diagram in cl 10.2. Second the height of the building in terms of both storeys and actual height is appropriate taking into account the significantly greater heights of its neighbours to the south and west. 58 In my view both of these matters need to be taken into account, as they are matters that arise out of the proper application of the DCP.

59 The applicant has provided the Court with a photomontage of the proposed building when viewed from an elevated position opposite the site in Coast Avenue. This photomontage shows the relationship between the proposed building and adjoining buildings to the north and south. Also superimposed upon the photomontage is an outline of a theoretical building said by Mr Crane to comply with the storeys height controls within the DCP. More particularly this outline or building envelope is said to reflect the diagram under the heading Design Controls in cl 10.2 of the DCP in terms of: + utilising the maximum floor to ceiling height of 4.5 m; + utilising the 1.5 m maximum height from existing ground level to first floor level; and + the provision of a pitched roof. 60 The proposal fits within this envelope. Whilst it is unlikely that anyone would design or seek to build a residential flat building that has floor to ceiling heights of 4.5 m throughout, this is clearly what the DCP allows and is a matter that is required to be given some weight.

61 As for the height and indeed bulk of the proposed building in terms of its relationship to its neighbours, Mr Hand in his evidence referred to the Court's decision in Project Venture Developments v Pittwater Council [2005] NSWLEC 191. In that judgement the principles to be considered when assessing the compatibility of a proposal with its surroundings were set out by Roseth SC who said: 23. It should be noted that compatibility between proposed and existing is not always desirable. There are situations where extreme differences in scale and appearance produce great urban design involving landmark buildings. There are situations where the planning controls envisage a change of character, in which case compatibility with the future character is more appropriate than with the existing. Finally, there are urban environments that are so unattractive that it is best not to reproduce them. 24 Where compatibility between a building and its surroundings is desirable, its two major aspects are physical impact and visual impact. In order to test whether a proposal is compatible with its context, two questions should be asked. … Are the proposal's physical impacts on surrounding development acceptable? The physical impacts include constraints on the development potential of surrounding sites. … Is the proposal's appearance in harmony with the buildings around it and the character of the street? 62 The matter of physical (amenity) impacts is dealt with later in this judgement.

63 In relation to the proposed building's appearance Mr Hand explained that compatibility with the desired and likely future character of this area as envisaged by the three-storey limit in the DCP was a critical consideration. Breaches of this control should not be justified by reference to what exists in the immediate locality despite the Senior Commissioner's harmony and character considerations. The taller existing buildings are antipathetic to current planning controls and it is thus important for new development to comply and minimise the cumulative effect of what will, in his opinion, be inappropriate development. Also the three-storey standard is reasonably consistent with much of the built form of the area and has created the reasonable expectation for residents regarding the height of future development. 64 Mr Crane believed that the proposed building effectively complies with the DCP control on heights despite being a four-storey building. As indicated above he supports the approach of generating a building envelope based on the maximum allowable floor to ceiling heights. He also, in a contextual sense, believes that the proposed building meets the LEP and the DCP objectives in relation to height.

65 Mr Dickson responded to the question of compatibility, including bulk and scale by considering surrounding development, noting that there exists a number of nearby developments that are three storeys in height as well as a number of developments that are well in excess of three storeys. In particular the adjoining building at 22 Coast Avenue is seven storeys in height and because it is a relatively recent building and is strata titled this reduces the likelihood of redevelopment. A similar conclusion can be reached in relation to other buildings that exceed the three-storey standard. He concluded that an appropriate form of development for the subject site would comprise a transitional building having a height between those buildings to the south and west and those to the north.

66 In response to Mr Dickson's limited concerns in relation to streetscape and character the applicant has agreed to his suggested changes involving the landscape treatment to the Coast Avenue frontage particularly the extent of privacy walls. A number of other recommendations made by him including floor to ceiling heights and the roof form/height have been accepted by the applicant and I agree that these requirements should be applied. 67 I also agree with Mr Dickson's conclusion that the adjoining and close by buildings that exceed the three-storey standard are unlikely to be redeveloped in the foreseeable future. Moreover, if the consent authority were to seek to impose the three-storey standard, I expect that redevelopment would be even more unlikely.

68 In my opinion, notwithstanding the present storeys limit the buildings surrounding the subject site indicate that the future streetscape, character and height for the purposes of this application in the context of the DCP is likely to involve buildings in excess of three-storeys. Despite suggestions to the contrary I do not accept that the taller buildings are so unattractive in terms of appearance, bulk and scale that they should be disregarded.

69 In these circumstances I have decided that the proposed building would provide an appropriate fit into the existing streetscape particularly in terms of its height. Built height compatibility between the proposed building and existing buildings both to the north, west and south is highly desirable, indeed required by the DCP. Such compatibility is provided by the proposed building, providing a transition between larger and smaller buildings. Indeed this approach might even indicate that a taller building than presently proposed would be appropriate. 70 In the circumstances and agreeing as I do with Mr Crane and Mr Dickson that the architecture of this building is high-quality I expect that a harmonious relationship with its neighbours will result. More generally I do not accept the contention that following a proper consideration of the requirements of the DCP and its objectives that simply because a building looks like four-storeys rather than looking like three-storeys is a reason for its rejection.

71 In relation to the second test posed by the Senior Commissioner I am thus satisfied that the proposal's appearance would, to use his words, be in harmony with the buildings around it and the character of the street.

Amenity impacts 72 As for the first test posed by the Senior Commissioner in Project Venture the physical amenity impacts of the proposed building on neighbouring buildings comprise loss of views and increased overshadowing. The impacts resulting from the proposed building on some of the lower level dwellings in the adjoining residential flat building to the south at No 22 Coast Avenue involve some loss of views and some overshadowing. The impacts resulting from the proposed building on a number of dwellings in the residential flat building to the west at No. 13 - 17 Coast Avenue involve varying degrees of view loss.

73 The principles to be considered when there is a general statement in the relevant planning instrument concerning view sharing were set out by Roseth SC in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The Senior Commissioner adopted a four step assessment which in essence requires the following: + An assessment of the value of views to be affected by reference to their nature, extent and completeness. + A consideration of how views are obtained and what part of the property the views are obtained from. + A qualitative assessment of the extent of the impact in terms of severity particularly as to whether that impact negligible, minor, moderate, severe or devastating. + An assessment of the reasonableness of the proposal that is causing the impact particularly in terms of compliance with applicable planning controls and whether a different or complying design might produce a better result. 74 Whilst I could discover no general statement in the DCP or the LEP that requires view sharing as such, cl 34 of the LEP requires the minimisation of impacts associated with loss of views and cl 10 of the DCP requires that building height should not detract from the amenity of adjoining residents and the optimisation of views for residents.

75 The dwellings that will be affected by the proposal have a range of views including views of: the ocean and nearby foreshore over and between buildings; more distant coastline to the north and south; and landmark trees and other buildings. Some have views of the tidally affected Shark Island. These views are variously available from living rooms, kitchens, bedrooms and balconies.

76 During the site inspection I visited a number of dwellings in the affected buildings and was able to assess the extent of view loss. Not surprisingly those dwellings at levels higher than the proposed building would have little or no view loss. Some of those dwellings situated at levels at or just below the top level of the proposal would have their views interrupted to a significant degree either in terms of quality and/or extent. Lower level dwellings that do not have views of any significance as a result of the existing buildings on site will generally be little affected.

77 Mr Hand was of the opinion that the extra height of the building associated with the fourth storey results in significant impacts associated with view loss. In this regard he agreed with the concerns expressed by the objectors. He also pointed out that if one storey were to be removed from the proposed building, the dwellings in the affected buildings would have their views interrupted to a lesser degree. 78 Mr Crane made reference to a view impact analysis plan and observed that a compliant three-storey residential flat building would have view impacts similar to what would result from the proposed building. Moreover views generally will not be unreasonably impacted by the proposed building.

79 Mr Dickson was of the opinion that subject to design changes to the proposed roof treatment the loss of views from the affected dwellings would be acceptable. He reached this conclusion in the context of his opinion as to the need for a transition in building heights and the retention of view corridors between the proposed and existing buildings.

80 Clearly there will be view losses to varying degrees from some dwellings in the affected buildings. Water views will remain but some of these will be reduced. Many views will be unaffected, particularly in directions to the north and south of the proposed building. But are these losses sufficient to warrant refusal of the application? 81 As I have already concluded that proposed building does not have an excessive bulk and scale. More significantly I have also decided that the height of the building is an appropriate response to the thrust of the applicable controls in the LEP and the DCP. Whilst it does not attract determining weight, the essential consistency with the building envelope referred to in cl 10.2 of the DCP is a further relevant consideration. In this regard comparing the proposed building with a building that is consistent with this building envelope, there would be little or no difference in relation to view loss for the affected dwellings and overshadowing.

82 The principle utilised by Senior Commissioner Roseth in Parsonage v Ku-ring-gai Council [2004] NSWLEC 347, where he deals with solar access in the context of reasonable development expectations, can, in conjunction with Tenacity, be similarly applied to view loss. In my opinion the proper interpretation of the applicable controls in the LEP and the DCP point to a certain development expectation for this site. In my view the proposed building does not represent an unreasonable development expectation.

83 In my view, it is in the public interest that there be a building of appropriate height, bulk and scale on the site and in this case this attracts greater importance than the private interests of individual property owners as important as these might be. 84 Together these matters have resulted in my conclusion that in relation to views the impacts associated with the proposed building are not such as to warrant refusal of the application.

85 According to Mr Hand the proposed building, particularly the fourth-storey will result in additional unnecessary overshadowing at the winter solstice of lower level dwellings at No. 22 Coast Avenue, reflecting residents' concerns. In this regard, it was suggested that if one-storey were to be removed from the proposed building those dwellings in the building to the south would clearly be less affected and may not be affected at all.

86 Mr Dickson and Mr Crane acknowledged increased overshadowing but contend that the increase would be minor and certainly not unreasonable, bearing in mind the separation between buildings and their north-south relationship.

87 Adopting the approach taken by Senior Commissioner Roseth in Parsonage, impacts associated with overshadowing must be assessed in the context of reasonable development expectations and constraints imposed by the subdivision pattern. As I have already concluded the proposed building does not represent an unreasonable development expectation. Taking this into account together with the north-south subdivision relationship, leads to the conclusion that the additional overshadowing is not unreasonable. 88 In this regard I note that there is likely to be little or no difference in overshadowing if a building were to be constructed on the site in accordance with the building envelope based on the diagram in cl 10.2 of the DCP by comparison with the proposal. Conclusions 89 Much was made of the residents expectations that redevelopment in this locality would be no more than three storeys, consistent with Mr Hand's interpretation of the DCP. However I do not accept that such expectations are justified.

90 It is not correct to simply choose one provision of the DCP and rely on this when making assumptions, in this case, about the likely future height of buildings. All associated, relevant provisions of the LEP and the DCP need to be included in any such consideration.

91 Whilst it is to be acknowledged that prima facie cl 10 of the DCP sets a maximum height of three-storeys, the design controls in the DCP also require that the height of development should be consistent with the surrounding development and be in context with the streetscape including buildings on the opposite side of the street. Contextual urban design is required.

92 Understandably there was little dispute as to the architectural quality of the proposed building, notwithstanding that it is of a different, more modern style by comparison with its neighbours. I am in no doubt as to the architectural quality of the proposed building not only in terms of the amenity that will be provided for its occupants but also in terms of its appearance and its contribution to the streetscape. The intended landscape setting further supports this conclusion. As I have already concluded I am satisfied that the height, bulk and scale of the proposed building would, in terms of streetscape and character, be appropriate. 93 I have also decided that the subject site is one that should be developed in a manner that provides a transition between the taller buildings to the south and west and the lower buildings to the north. By itself this approach could be used to justify a building higher than what is presently proposed. Conversely, a building having the same height as the adjoining residential flat buildings to the north would be inappropriate.

94 Notwithstanding the resultant loss of amenity for some nearby dwellings this proposed building will be the kind of development anticipated in the 2(c) zone, being a high density residential flat building and having a high quality design. Despite the amenity impacts I am satisfied that the proposed building in its setting comprises an appropriate response to the provisions of the DCP and the LEP.

95 I have already noted that the car parking as proposed is an appropriate provision for the four dwellings. Subject to minor changes as provided for in the conditions of consent, satisfactory access to the ground floor adaptable dwelling will be provided.

96 The appeal is therefore upheld and development consent should be granted subject to appropriate conditions. Conditions 97 Several aspects of the deferred commencement condition that was otherwise agreed to by the applicant remain in dispute.

98 Condition (d) that requires grey water recycling is deleted. Rainwater reuse is proposed but there was no evidence to show that on site grey water recycling is possible, taking into account health requirements.

99 Condition (e) requiring access between adaptable Unit 1 and The Esplanade is retained, this being a desirable provision that is according to Mr Dickson capable of being provided.

100 Condition (h) that sets a maximum floor space ratio is deleted, the floor space ratio matter already having been dealt with in this judgment.

Orders 101 The decision of the Court is that: 1. The appeal is upheld 2. Development Application No. 04/1127, for the demolition of two existing two-storey residential flat buildings and the construction of a four-storey residential flat building with basement carparking at 18-20 Coast Avenue, Cronulla, is determined by the granting of development consent subject to the conditions in Annexure A hereto. 3. Exhibit S is retained. _______________________ T A Bly Commissioner of the Court Rjs/ljr

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.