Sit Family Pty Ltd v Mosman Municipal Council

Issues

1. The Respondent maintains that the development application as amended should be refused for the following reasons: 1. Floor Space Ratio: The development application exceeds the floor space ratio (FSR) standard that applies to the subject site and the written request seeking to vary the FSR standard should not be upheld by the Court as the relevant preconditions are not met; 2. Excavation and Mechanical Parking: The excavation of the site for the garage, parking mechanism and associated plant room is excessive. The parking solution is inappropriate to the site. Further, the Respondent argues that the provision of a standard double garage on the site is feasible, would result in less excavation and would not be out of character with the locality; 3. Streetscape: The bulk and scale of the development has an adverse impact on local and neighbourhood amenity and the streetscape. The proposed development does not comply with the setback controls and objectives. The development is inappropriately sited which exacerbates both the perception of bulk and scale and view loss; 4. View loss: The proposed development results in unreasonable view impacts to proximate private properties; and 5. Public Interest: for the preceding reasons and the issues raised by objectors in their submissions, the approval of the development application is not in the public interest.

Subject site and context

1. The subject site is located on the eastern side of Burran Avenue, between Kirkoswald Avenue and the unformed section of Stanton Avenue. The site falls approximately 25m from the street frontage to the boundary of the site and Middle Harbour. The site contains an existing two storey dwelling and pool, both of which are proposed to be demolished by the development application. The subject site has a land area of 991.7m2 and a frontage to Burran Avenue of 22.5m.
2. The locality, the existing dwelling and the immediately proximate dwellings have expansive harbour views from both public and private locations. The surrounding area is characterised by two and three storey residential dwelling houses.
3. The site is located within the Rosherville/ Wy-ar-gine townscape as defined by the Mosman Development Control Plan 2012 (DCP 2012) and is zoned R2 Low Density Residential pursuant to Mosman Local Environmental Plan 2012 (LEP 2012).
4. The following aerial photograph identifies the subject site and the adjoining properties relevant to the issues in dispute between the parties: Source: https://maps.six.nsw.gov.au/

Public Submissions

1. The original development application was advertised and notified to surrounding properties in late December 2020 through until 25 January 2021 in accordance with the Mosman Community Participation Plan 2020. Twelve submissions were received. These objections raise the following concerns with the development application: 1. That the proposed development contravenes the objectives of the R2 Low Density Residential zone, 2. That the new dwelling and garage are not compliant with the Council's development controls for height of buildings, in particular the maximum building height, wall height and storey controls in LEP 2012, 3. That the proposed dwelling will appear as four storey development when viewed from the Harbour, 4. The proposed exceedance of FSR. Given that the proposed development includes demolition of the existing structures it should comply with current standards, 5. That the new dwelling includes works forward of the foreshore building line (FBL) and will have a detrimental impact on the scenic protection area, 6. The perceived bulk and scale of the proposed development is excessive when viewed in the streetscape of Burran Avenue, from adjoining neighbours properties and from Middle Harbour, 7. The proposed development provides inadequate setbacks, 8. Poor siting of development within the site has detrimental impacts on views from 15A Burran Avenue to the Harbour, 9. The proposed dwelling will result in potential and actual overlooking of adjoining properties internal rooms and outdoor spaces, 10. The potential for adverse noise impacts for adjoining residents arising from the mechanical parking system, 11. The potential for queueing of vehicles in Burran Avenue waiting to access the mechanical parking system in the garage. The submission argues this impact is exacerbated given the site's location on the corner of Burran Avenue, the location of the Council retaining wall in the centre of the road reserve and the divided nature of Burran Avenue in front of the subject property, 12. That the proposed mechanical parking system is not warranted given the feasibility of a 'standard' double garage on the subject site, 13. The potential for changes to hydrology as a result of the substantial excavation proposed, 14. The unnecessary extent of excavation will generate excessive noise during excavation and has the potential to create instability for adjoining properties, 15. There is potential for adverse impacts to local traffic during construction. Further, there is the potential for trade and other vehicles to use the unformed section of Stanton Road to park during construction. These matters would both impact the amenity of adjoining properties, 16. That the proposed development contravenes an easement and restriction imposed on the property created by a s 88b instrument which limits the height of development on the subject site. The proposed development is not consistent with the requirements of the restriction, 17. The proposed development has similar concerns and issues as an earlier application which was refused by Council, and 18. The need for any assessment of the development application to give consideration to indigenous heritage on Wyargine Point.
2. In response to the objection summarised at sub paragraph (10) in the preceding, I note it was the agreed position of the parties that the effect of cl 1.9A of LEP 2012 is that restrictions in a covenant do not have any effect to the extent they restrict the purpose of enabling development on land to be carried out in accordance with LEP 2012. I accept this agreed submission.
3. A number of residents made oral submissions to the Court during the onsite view. In particular residents expressed ongoing concern about: 1. the reasonableness of view impacts 15A Burran Avenue arising from the development, 2. the potential impact to privacy from the new dwelling to both internal habitable room and private open spaces of adjoining properties, 3. the scale of the development and its overbearing nature given its proximity to the common boundary with adjoining properties, 4. the potential impact on the cliff/escarpment from the proposed pool and deck works, 5. the amenity impacts arising from the extensive excavation into sandstone to accommodate the proposed automated parking system and the likely extended construction timeframe, and 6. the impact on privacy and enjoyment of private open spaces on adjoining properties from overlooking from the proposed dwelling.
4. In determining the development application, I have read and considered the submissions received by the public: s 4.15(1)(d) of the EPA Act.

Planning Controls

1. Prior to considering the contentions raised by the Respondent in support of the refusal of the development application or undertaking an assessment of the merit of the development application, it is necessary to address any relevant preconditions to the grant of consent: HP Subsidiary Pty Ltd v Parramatta City Council [2020] NSWLEC 135 at [16]. In these proceedings the following provisions either require consideration of, or satisfaction of, specific matters as a precondition to the exercise of power to grant consent:

• State Environmental Planning Policy No 55 - Remediation of Land, cl 7.
• State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, cl 6.
• Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 3, 14, 20, Division 2.
• State Environmental Planning Policy (Coastal Management) 2018, cll 13, 14.
• Mosman Local Environmental Plan 2012, cll 2.3, 4.4, 6.1, 6.3, 6.4.

1. I have detailed by consideration if these matters in the following.
2. As required by cl 7(1) of State Environmental Planning Policy No 55 - Remediation of Land (SEPP 55) in determining the development application I have given consideration to whether the subject site is contaminated. Based on the historical use of the site as residential, it is considered unlikely that the site will require remediation works. No change of use is proposed by the development application. Pursuant to cl 7 of SEPP 55, I accept that the site will be suitable for the proposed development.
3. As the development application is for 'BASIX affected development' the development application must be accompanied by a BASIX certificate. Such a certification (BASIX certificate number 1134617S) is provided with the development application, satisfying the requirements of cl 6 of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
4. The subject site is located within the boundaries of both the "Foreshores and Waterways Area" as defined in the mapping under Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP Sydney Harbour Catchment). As required by cl 20 in determining the development application I have taken into consideration the matters for consideration at cll 21-26 as relevant to the proceedings. In particular, I note the provisions of cl 25 and 26 which state: 25 Foreshore and waterways scenic quality The matters to be taken into consideration in relation to the maintenance, protection and enhancement of the scenic quality of foreshores and waterways are as follows - (a) the scale, form, design and siting of any building should be based on an analysis of - (i) the land on which it is to be erected, and (ii) the adjoining land, and (iii) the likely future character of the locality, (b) development should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands, foreshores and tributaries, (c) the cumulative impact of water-based development should not detract from the character of the waterways and adjoining foreshores. 26 Maintenance, protection and enhancement of views 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.
5. In relation to cl 25 of SREP Sydney Harbour Catchment and the maintenance, protection and enhancement of scenic protection, I am satisfied that the scale and form of the building proposed are satisfactory. The proposed development is compliant with the development controls for height, setbacks and FSR which, while not definitive, are all indicators that the dwelling is compatible with the likely future character of the locality. Further discussion of the Respondent's contentions and my findings in relation to bulk, scale and streetscape presentation of the proposed development commence at [87].
6. Further, the development as amended is wholly behind the foreshore building line. I note that the subject site is within the Rosherville / Wy-ar-gine Townscape as detailed in DCP 2012. I have given weight to the planning controls in this locality statement in concluding that the scale and form of the building proposed is satisfactory.
7. The Applicant has prepared a series of photo montages of the proposed development from viewpoints within Sydney Harbour, in part directed to the matters for consideration at cl 26(b) of SREP Sydney Harbour Catchment. In determining the development application, I have made an assessment of the photomontages and taken into consideration the matters at cl 26 of SREP Sydney Harbour Catchment. I am satisfied that the view of the proposed development from Sydney Harbour is acceptable.
8. I note that subcl (a) of cl 26 includes consideration of the protection of views to the Harbour. The relevant expert evidence in relation to the impact of the proposed development on views, particularly from 15A Burran Avenue, is summarised from [93]-[102]. My consideration of the Respondent's contentions in relation to view loss is located at [103] along with my assessment and reasoning. In summary, having regard to the evidence and taking into consideration the requirements of cl 26 of SREP Sydney Harbour Catchment, I find that the view loss impact arising of the proposed development is acceptable and does not warrant the refusal of the development application.
9. The subject site is within the Coastal Environmental Area and Coastal Use Area as mapped by State Environmental Planning Policy (Coastal Management) 2018 (SEPP CM). However, cl 13(3) of SEPP CM provides that the precondition contained in cl 13(1) of the instrument does not apply to land within the Foreshores and Waterways Area as mapped by SREP Sydney Harbour Catchment. The provisions of cl 14(3) of SEPP CM similarly provides that the precondition contained in cl 14(1) of the instrument does not apply as the site is within the Foreshores and Waterways Area as mapped by SREP Sydney Harbour Catchment.
10. Clause 15 of SEPP CM states that development consent must not be granted to development on land within the coastal zone, such as the subject site, unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land. The Applicant has prepared and tendered advice from a coastal engineer (Exhibit G) along with a geotechnical report (Exhibit H). By reference to this evidence I am satisfied that the precondition in cl 15 of SEPP CM is satisfied and that the proposed development is not likely to increase risk of coastal hazard.
11. LEP 2012 requires that in determining a development application the consent authority must give consideration to the zone objectives: cl 2.3 of LEP 2012. The objectives of the R2 Low Density Residential zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To retain the single dwelling character of the environmentally sensitive residential areas of Mosman. • To maintain the general dominance of landscape over built form, particularly on harbour foreshores. • To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. • To ensure that development is of a height and scale that seeks to achieve the desired future character. • To encourage residential development that maintains or enhances local amenity and, in particular, public and private views. • To minimise the adverse effects of bulk and scale of buildings.
12. In determining the development application, I have given consideration to these zone objectives.
13. Pursuant to cl 4.3 Height of Buildings in LEP 2012 the subject site has a maximum height above ground level existing of 8.5m. The amended development application is compliant with this development standard. Further, the amended development application is agreed by the experts to comply with cl 4.3A of LEP 2012 which permits no more than two storeys above ground level existing.
14. LEP 2012 provides a maximum wall height development standard for the subject site of 7.2m. The experts agree that the amended development application complies with this development standard.
15. Pursuant to cl 4.4(2) of LEP 2012 the FSR for buildings on the land cannot exceed the FSR contained on the Floor Space Ratio Map. For the subject site the maximum permitted FSR is 0.47:1. The calculation of the proposed gross floor area (GFA) of the proposed development was the subject of evidence which is summarised commencing at [42]. I find that, for the reasons detailed at [42]-[58], applying the definition of GFA in LEP 2012, the proposed development is compliant with the FSR development standard.
16. The eastern, rear, edge of the site is mapped as an acid sulphate soil buffer zone. Pursuant to cl 6.1(2) of LEP 2012, the proposed development does not incorporate excavation works more than 1 metre below Australian Height Datum. Given this, the precondition at cl 6.1(3) of LEP 2012 does not apply to the proposed development.
17. Clause 6.3(2) of LEP 2012 provides constraints on the grant of consent to development within the foreshore area. The amended development application is contained wholly behind the foreshore building line. The provisions of cl 6.3 of LEP 2012 are satisfied.
18. Clause 6.4 of LEP 2012 is directed to scenic protection. The subject site is land identified as scenic protection. At sub cl (3) the provision states: (3) Development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that - (a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and (b) the development will maintain the existing natural landscape and landform.
19. The discussion at [24] is relevant to the precondition at cl 6.4(3)(a) of LEP 2012. I am satisfied that the development minimises the visual impact of the development when viewed from Sydney Harbour. Further, I am satisfied that the design of the proposed development minimises the visual impact of the development to Sydney Harbour. In my view it does this firstly, by its compliance with the side setback controls contained in the Rosherville/ Wy-ar-gine Townscape locality statement of DCP 2012 which reinforces a view corridor to Sydney Harbour for neighbouring properties. Secondly, by having maximum building height, materially less than the development standard of 8.5m in LEP 2012 and finally through its modulated architectural design and choice of materials. I accept and adopt the evidence of Mr Chambers and Mr Aspinall as summarised at [100]-[102]. I find that the precondition at cl 6.4(3) is satisfied.
20. Clause 6.6 of LEP 2012 requires, as a precondition to consent, that the consent authority be satisfied that the proposed development provides at a minimum 50% of the site area as landscaped area. The proposed development provides 542.4m² of landscaping which equates to 54.6% of the site area, satisfying this precondition.
21. Given the relevant preconditions to the grant of consent in the applicable planning instruments are satisfied the remainder of the judgment considers the contentions raised by the Respondent in the proceedings and the merit assessment of the development application under cl 4.15 of the EPA Act. The conclusion of that assessment is that the development application warrants approval subject to the conditions of consent annexed to this judgment.

Expert Evidence

1. In these proceedings the Court was assisted by town planning evidence from Mr Robert Chambers, town planner for the Applicant and Mr Steven Layman, town planner for the Respondent. These town planning experts conferenced with Mr John Aspinall, a visual consultant and architect for the Applicant. The experts prepared a joint report that was tendered in the proceedings as Exhibit 5. The experts were also called for cross examination.
2. The Court was also assisted by geotechnical evidence from Mr David Woodley, civil engineer for the Respondent and Mr Theunissen, geotechnical engineer for the Applicant. The experts prepared a joint report that was tendered in the proceedings as Exhibit 6. The conclusion of their joint report was that the Geotechnical Report and Geotechnical and Vibration Monitoring Program prepared by JK Geotechnics Pty Ltd, dated 15 October 2021 satisfied any geotechnical concerns contended by the Respondent in the proceedings. The experts were not called for cross examination. I note that the two reports relied on by the experts form part of the approved plans and documentation at condition 1 of Annexure A and further geotechnical requirements are included in condition 11, 14, 15, 27 and 45 as part of the approval of the development.
3. The Court was also assisted by traffic engineering evidence from Mr David Woodley, Civil Engineer for the Respondent and Mr Paul Corbett, Traffic Engineer for the Applicant. The experts prepared a joint report that was tendered in the proceedings as Exhibit 4. The experts were not called for cross examination.

The development complies with the FSR development standard.

1. By reference to the amended architectural plans the Applicant asserts that the proposed development has a GFA of 442.68m². The experts agree that the subject site has an area of 991.7m². Therefore, on the Applicant's analysis, the development application has an FSR of 0.446:1. On the Applicant's figures the development is compliant with the applicable maximum FSR under cl 4.4 of LEP 2012 of 0.4706:1.
2. The GFA for a proposed development is calculated in accordance with the definition contained in LEP 2012, as follows: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes - (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes - (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement - (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
3. In contrast to the Applicant's position, Mr Layman argues that the development standard for FSR is breached by the proposed development on the basis of a different application of the above GFA definition. Applying Mr Layman's interpretation of the GFA definition, and the measured areas marked on the architectural plans, he concludes that the GFA of the proposed development is 504.47m² translating to a maximum FSR of 0.5087:1, which he argues breaches the FSR development standard.
4. There are three areas of dispute between the parties as to the application of the GFA definition. Firstly, the inclusion or exclusion of the mechanical stacker proposed for vehicular parking. Secondly, the inclusion or exclusion of the area that provides access to the carparking within the garage. Finally, the treatment of the internal passenger lift within the dwelling.
5. On Mr Layman's evidence each of these areas are GFA and result in the proposed development exceeding the development standard for FSR by 37.79m². Mr Layman includes 23.8m² of GFA for the mechanical vehicle stacker at each of Level 1, Ground Level and Lower Ground level, 2.5m² on each of ground, level 1 and level 2 for the internal passenger lift and an additional 6.70m² due to the provision of car parking in excess of the councils parking requirements (applying subcl (a) of the GFA definition). (Exhibit 5)

The Mechanical Vehicle Stacker

1. Prior to a discussion of the experts varied evidence on the mechanical vehicle stacker, it is appropriate to provide some context by describing what system is proposed by the development application for the parking of motor vehicles. At street level the development application proposes a 7.3m x 4m wide garage. It will appear as a single storey garage with a garage door when viewed from Burran Avenue. The roof of the garage structure is to be planted as an upper level garden accessible from the upstairs bedroom. By refence to the architectural plans, the garage at Level 1/ street level has an approximate internal area of 21.35m² (6.1m x 3.5m). This area contains some perimeter floor area but is predominantly occupied by a void for the mechanical parking system. At ground level a void exists to create a shaft within which the mechanism for the parking system is contained. A small plant area is required for the mechanical parking system, which is located to the south of the shaft. The plant area is only required at ground level. A 'parking space' is included within the floor plan of the ground level where a vehicle can be stored, clearing the mechanical parking system shaft. This 'parking space' is created by a retractable platform within the mechanism of the parking system. The lower ground floor contains a void, the base of the vertical shaft and a second 'parking space' of the kind at ground level. (Exhibit A)
2. The experts agree that the area of carparking required to meet the parking requirements of the Council, excluded by subcl (g) of the GFA definition is 36m². I accept and prefer the evidence of Mr Chambers as the correct application of the GFA definition. I am satisfied that the relevant floor area to be calculated is the area at the base of the shaft at the lower ground level. I accept that the fact that a mechanical vehicle stacker is constructed within that shaft, with a mechanised platform on which a vehicle can park, does not have the consequence of creating floor area at each of the ground and lower ground floors. The parking area at lower ground level (the base of the shaft), at 23.8m² is less than 36m² and I am satisfied can be excluded from the calculation of GFA for the proposed development. I am not persuaded by Mr Layman that the provision of parking in the development application is in excess of Council's requirements. My reasoning follows.
3. I am not persuaded that the two 'parking areas' at both ground and lower ground are floors of a building as anticipated by the chapeau of the GFA definition. I am satisfied that they are more appropriately characterised as platforms which form part of the mechanical parking system as a whole. The platforms do not extend to the internal face of the external walls or internal walls. I accept and prefer the evidence of Mr Chambers that these platforms should be excluded from any calculation of the GFA of the proposed development.
4. I note for completeness that I find that the plant room at ground level is excluded from the calculation of GFA by sub par (f) of the GFA definition. On this basis I disagree with Mr Layman's evidence.

Area that provides access to carparking.

1. In Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 ('Buyozo') at [89], Preston CJ noted that in applying the GFA definition extracted at [43] the corridors leading from the car park to the entrance of storage units in that development were excluded from GFA on the basis that the areas fell within the exclusion at (h) of the GFA definition. The reasoning is extracted below: "The enquiry demanded by paragraph (h), as it is for paragraph (g), of the definition of gross floor area, is to identify the area within the building as a whole used for the loading or unloading of goods (paragraph (h)) or for carparking (paragraph (g)) for the purpose authorised by the development consent, here storage premises. Once this is recognised, not only the areas authorised to be used for the loading or unloading of goods or carparking, but also the areas that provide access to these authorised areas, can be readily identified."
2. Applying the reasoning in Buyozo, I am satisfied that the relevant area to provide access to carparking is the remaining area of the garage provided at Level 1, namely at the perimeter of the void for the mechanical parking system. I find that this area is excluded from GFA by application of the sub par (g) of the GFA definition.

Internal passenger lift within the dwelling

1. Mr Layman includes in his calculation of GFA an area of 2.5m² at each of ground level, level 1 and level 2 representing the area of the internal passenger lift. His reasoning is that: "In my opinion the area occupied by the lift shaft at all levels is part of gross floor area. This is because its sole purpose is vertical circulation, but not common vertical circulation, and is therefore caught by the GFA definition." (Exhibit 5)
2. In the alternative, Mr Chambers argues that the architectural plans correctly calculate the GFA in relation to the internal passenger lift by including its area only once, at the lower ground level. Mr Chambers argues that at each of the other levels in the dwelling the area designated 'lift' on the floor plans is a void. (Exhibit 5)
3. In considering the competing evidence I agree with and apply the reasoning of Horton C in Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181 at [86]. Namely that: "As GFA is calculated at 1.4m above a floor, and as it excludes voids above a floor at the level of a storey or storey above, I accept the method articulated by Mr Betros in relation to stairs and lifts because, at the level at which GFA is measured, stairs and lift wells appear as voids, or part voids, and do not constitute floor area that is available to be stood upon or counted."
4. On this basis I accept and adopt the approach of Mr Chambers at [54] that the area of the internal passenger lift within the dwelling contributes 2.5m² to the GFA of the proposed dwelling.
5. On the basis of the preceding findings, and by reference to the FSR calculation sheet which forms part of Exhibit A, I am satisfied that the GFA of the proposed dwelling is 442.68m², resulting in a compliant FSR of 0.446:1. The maximum FSR standard is not varied by the proposed development.
6. I am satisfied that the Respondent's contention that the development application exceeds the FSR development standard is not made out.

The proposed excavation is acceptable.

1. The Respondent argues that the development application should be refused because the excavation proposed is excessive. The Respondent argues that:

• the excavation proposed is inconsistent with the following provisions at Section 5.14: Excavation and Site Management of DCP 2012: "Objectives: Objective O1: To have the integrity of the physical environment preserved and enhanced by ensuring minimal site disturbance. Objective O2: To have appropriate controls that safeguard neighbourhood amenity as much as practicable. Planning Controls: … P2: site excavation must be designed and located with an aim to minimise cut and fill requirements (especially on sites that have steep slopes). There must be minimal site disturbance."
• The excavation is inconsistent with the following provisions of DCP 2012 at Section 4.2 Siting and Scale: "Objectives: … Objective O9: To have buildings which are sited to relate to the topography with minimal cut and fill and preserve existing significant trees, vegetation, rock outcrops, water courses, natural features and promote vegetation links. Planning Controls: … P21: Buildings should be sited having regard to topographic features. The building footprint should be designed to minimise cut and fill. Refer to excavation and site management controls of this plan for more details."
• The excavation is inconsistent with the following provisions of Section 4.4 Landscaping of DCP 2013: "Objectives: … Objective O10: To have natural ground levels maintained, especially near boundaries. Planning Controls: … P15: Cutting and filling is to be minimised as far as practicable and should not affect natural drainage lines. Fill material is to be virgin excavated material only and placed in such a manner not to disturb local indigenous bushland or plant and tree species."

1. I note that the joint expert report of the geotechnical engineers states that they are satisfied that the proposed excavation does not, in their opinion, raise any geotechnical concern and that the geotechnical reports and analysis provided by the Applicant are sufficient. (Exhibit 6) Further, I note that the annexed conditions of consent incorporate the following conditions directed to geotechnical matters: "7 Shoring and Adequacy of Adjoining Property Development involving excavation that extends below the level of the base of the footings of a building, structure or work (including any structure within a road corridor) on adjoining land, the person having the benefit of the development consent must at the person's own expense: (a) protect and support the building, structure or work from possible damage from the excavation, and (b) where necessary, underpin the adjoining premises to prevent any such damage. … 11 Geotechnical Endorsement As the site contains a cliff or is located in an area susceptible to landslip, the Construction Certificate application plans must be endorsed or countersigned by a qualified practicing Geotechnical Engineer with membership of the Institute of Engineers Australia or who is eligible to become a member and has appropriate experience and competence in the related field. … 13. Dilapidation Report - Private Assets The applicant shall supply Council with a dilapidation report for the adjoining properties at Nos. 22 and 22A Burran Avenue which documents and photographs the condition of buildings and improvements on those properties. The dilapidation report shall be submitted as a PDF in Adobe format or in A4 format. A copy of the report must be provided to Council, any other owners of public infrastructure and the owners of nominated properties. Council shall be provided with a list of owners to whom a copy of the report has been provided. 14. Excavation, Backfilling and Support for Neighbouring Buildings Excavation works shall not commence prior to the issue of the Construction Certificate or the issue of any relevant notices to adjoining owners, the Principal Certifying Authority or Council as required by other conditions of this consent. 15. Excavation, Backfilling and Support for Neighbouring Buildings A report shall be prepared by a practicing Geotechnical Engineer and submitted to Council or the Accredited Certifier detailing the structural condition of adjoining structures / property and their ability to withstand the proposed excavation, backfilling and construction. The report must investigate site and soil conditions and outline any recommended measures to ensure that no damage will occur to the structures / property during or subsequent to the carrying out of works. … 27. Geotechnical Endorsement As the site contains a cliff or is located in an area susceptible to landslip, a "Landslide Risk Management Assessment" (LRM) in terms of the "Australian Geomechanics Society Guidelines" published in 2000 and 2007 is required. … 45. Geotechnical Report All works shall be carried out in accordance with the recommendations contained in the geotechnical report prepared by JK Geotechnics dated 15 October 2021. … 73. Shoring and Adequacy of Adjoining Property All excavations and backfilling shall be limited to that required in accordance with the approved plans only and must be executed safely and if necessary properly guarded in accordance with appropriate professional standards to prevent them from being dangerous to life or property. At least 7 days before commencement of excavation, the applicant must give notice of an intention to excavate to the adjoining owner and furnish particulars to the owner of the proposed work. 74. Shoring and Adequacy of Adjoining Property If the development involves an excavation that extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must at the person's own expense: (a) protect and support the adjoining premises from possible damage from the excavation, and (b) where necessary, underpin the adjoining premises to prevent any such damage. …" (Annexure A)
2. Further, in response to the contentions filed by the Respondent, the Applicant prepared and filed advice from a coastal engineer regarding the potential for cliff erosion on the subject site. I note that the matter of coastal risk was also raised in submissions from the public. That report concludes, in part: "27. The assessment of the stability of the cliff and its management, and the stability of the cliff top structures are predominately a geotechnical and/or structural engineering area, however, coastal engineering input has been provided regarding published cliff erosion rates, extreme water levels and wave runup. 28. No significant coastal engineering hazards have been identified for the subject property, nor are they anticipated to arise due to climate change over the next 40 to 80 years. The portion of the site proposed for building is above the 100 year ARI wave run up level for the next 80 years. 29. The siltstone band at the cliff face is above the tidal level (mean high water springs and highest astronomical tide) for the present day and for a high sea level rise scenario to 2100. The siltstone band is above the 100 ARI still water level for the next 80 years, but may be subject to wave runup during extreme storms, noting that the siltstone band is partially protected from wave impacts due to the boulders which line the base of the cliff. Due to the small vertical spatial extent of the siltstone band (0.5 to 1m, between approximately 2.5 to 3.5 AHD), if increased undercutting is observed in the future, structural hardening would be relatively straightforward, subject to geotechnical input. It is recommended that ongoing inspections and monitoring of the cliff face and siltstone band be undertaken at 5 and 10 year intervals." (Exhibit K)
3. Mr Ward for the Respondent confirmed that the provision of the coastal engineering advice in Exhibit K, along with the agreed evidence of the geotechnical engineers, resolves the Respondent's previous request for additional information in relation to the risk of coastal erosion. I am also satisfied that the provision of this advice and the agreed evidence of the geotechnical engineers addresses the concerns raised in public submissions about the potential of the proposed development impacting the cliff and escarpment.
4. Accepting that the engineering experts are of the view that the extent of excavation proposed by the development is technically possible and acceptable, the Respondent maintains that, on merit, the extent of excavation is excessive.
5. Mr Layman argues that the extent of excavation proposed "goes well beyond the environmental capacity of the visually sensitive foreshore location of the site'. (Exhibit 5) Further, he argues that the extent and depth of the excavation does not meet the objective of the planning controls to preserve the integrity of the physical environment of the site.
6. It is Mr Layman's view that, due to the cliff location, the geometry of the site and its narrow frontage, it is not suitable to achieve the maximum development potential detailed in the planning controls (predominately maximum height and FSR). He further argues that the Applicant's choice of a mechanical vehicle stacker compounds the excessive excavation proposed in the development application.
7. In contrast Mr Chambers argues that the design of the proposed dwelling, and the extent of the proposed excavation, achieves a balanced outcome for the subject site. His reasoning can be summarised as follows:

• the proposed dwelling demonstrates overall compliance with the planning controls, rather than seeking to inappropriately maximise the development of the site as inferred by Mr Layman.
• there is no specified quantitative limit or development standard which is directed to the volume of excavation in either LEP 2012 or DCP 2012.
• the excavation, and choice of levels proposed, places the dwelling 2m below the maximum building height permitted of 8.5m in LEP 2012. This has the benefit of limit the impact of the proposed development on views from neighbour properties over the subject site to Sydney Harbour.
• the slope of the subject site requires excavation to provide efficient and effective floor plates for the dwelling.
• the mechanical vehicle stacker requires excavation for the shaft, parking platform and the plant. However, the entirety of that excavation is within the building footprint.
• the proposed excavation maintains reasonable setbacks from side boundaries consistent with the requirements of P6 in Section 4.2 'Siting and Scale' as excavation is not proposed in the setback area and does not require the removal of any significant trees or rock outcrops.
• the excavation proposed (with the exception of the pool) is contained within the footprint of the dwelling. (Exhibit 5)

1. Mr Chambers concludes that the design of the proposed dwelling balances the requirements of the planning controls, the constraints of the subject site, and the specific needs of the owner in relation to the mechanical vehicle stacker. He concludes that the extent of excavation does not breach the planning control and does not warrant refusal of the development application.

Findings

1. Following consideration of the evidence and the submissions of the parties I prefer and adopt the evidence of Mr Chambers summarised at [66]. My reasoning is as follows:

• when read collectively the planning controls identified by the Respondent in their contentions are directed to the minimisation of cut, fill and site disturbance, not control of the extent of excavation.
• the applicable planning controls do not contain a numerical standard that seeks to limit or restrict the extent or depth of excavation.
• the extent of excavation proposed is limited to the footprint of the proposed building, an integer in my view that contributes to the finding of acceptability.
• the geotechnical engineering experts agree in their joint report there are no geotechnical limitations on the carrying out of the excavation. The coastal engineering advice similarly does not identify any coastal risk that is influenced by the excavation proposed.
• I am not persuaded that on the evidence there are any unreasonable detrimental impacts that arise from the proposed excavation.

1. I note that a number of the public submissions, summarised at [11] and [12] raised concerns about the potential for the excavation to cause instability, excessive noise during construction and damage to adjoining properties. Subject to the imposition of the conditions of consent extracted in part at [60] and the following additional condition, I am satisfied that these issues in the public submissions have been adequately considered. "Additional condition 89A Post construction Dilapidation Report Before the issue of an Occupation Certificate, a post-construction dilapidation report is to be prepared of the Council assets and private properties referenced in conditions 12 and 13 of this consent. The dilapidation report shall be submitted as a PDF in Adobe format or in A4 format to the satisfaction of the Private Certifier, detailing whether: (a) after comparing the pre-construction dilapidation report to the post-construction report dilapidation report required under this consent, there has been any structural damage (including cracking in building finishes) to any Council assets and/or adjoining buildings at 22 and 22A Burran Avenue; and (b) where there has been structural damage (including cracking in building finishes) to any Council assets and/or adjoining buildings at 22 and 22A Burran Avenue, that it is a result of the building work approved under this development consent. Before the issue of an Occupation Certificate, the principal certifier is to provide a copy of the post-construction dilapidation report to Council (where Council is not the principal certifier) any owners of public infrastructure and the owners of 22 and 22A Burran Avenue. Council shall be provided with a list of owners to whom a copy of the report has been provided."
2. I am satisfied that the excavation proposed as part of development application does not generate any detrimental impact that would warrant the refusal of the development application.
3. I note the annexed conditions also incorporate a condition which imposes acoustic requirements on the operation of the mechanical vehicle stacker.

The streetscape presentation, and bulk and scale of the proposed dwelling are acceptable.

1. In the joint report of the planning and visual impact experts, Mr Layman argues that the bulk and scape of the amended proposal is inappropriate for the following reasons:

• the development continues to appear as 4 storey development when viewed from the waterway/ Sydney Harbour.
• that the development does not relate to the site topography given the extent of excavation and the siting of the lowest habitable floor below existing ground.
• the proposed development does not maintain a dominance of landscape over buildings which he argues is both characteristic of the locality and an objective of the Rosherville / Wy-ar-gine Townscape as detailed in DCP 2012. (Exhibit 5)

1. Further, Mr Layman concludes that the proposed development is inconsistent with the 'clear desired future character implicit in the MLEP for two storey development in the case of a site in Zone R2 which is subject to an 8.5m height limit, that is the subject site.' (Exhibit 5) Mr Layman argues that, in the determination of the desired future character of the locality, the Court should give greater weight to the planning controls (LEP 2012 and DCP 2012) than to the form of recent development in the locality. (Exhibit 5)
2. Mr Layman relies in part on the following provision of LEP 2012 to support his determination of the desired future character: 4.3A Height of buildings (additional provisions) (1) This clause applies to all land in a residential zone to which a maximum building height of 8.5 metres applies as shown on the Height of Buildings Map. (2) The consent authority may refuse development consent for the erection of a building on land to which this clause applies if the building has more than two storeys above ground level (existing). (3) However, the consent authority may grant development consent for an additional storey in the foundation space of an existing building on land to which this clause applies if the consent authority is satisfied that the building height and bulk is of an appropriate form and scale. (4) A building on land to which this clause applies must not have a wall height, at any point of the building (other than at a chimney, gable end or dormer window), that exceeds 7.2 metres. (5) In this clause - dormer window means a window in the roof plane that measures no more than 25% of the width of the roof in that plane. wall height means the vertical distance between the ground level (existing) and the underside of the eaves at the wall line, parapet or flat roof, whichever is the highest.
3. Mr Layman notes that pursuant to cl 4.3A(2) of LEP 2012 the consent authority may refuse development, which is subject to the 8.5m height limit, that is more than two stories in height above ground level existing. He argues that this provision, along with the limited opportunities provided to vary the two storey control, emphasise that the clear desired future character is for two storey development in the R2 Low Density Residential zone. (Exhibit 5)
4. Finally, Mr Layman acknowledges that while some three storey building forms occur in the locality, importantly they are interspersed with two storey and single storey forms. It is Mr Layman's assessment that single and two storey built forms predominate in the locality. He concludes: "The four storey character of the proposal goes well beyond the essential 2 storey desired future character and is made possible only by excessive and extensive excavation, in a sensitive foreshore location." (Exhibit 5)
5. Mr Layman raises two areas of concern in relation to streetscape: firstly, the presentation of the garage; and secondly, the presentation of the proposed Level 2 to Burran Avenue.
6. In relation to the garage, Mr Layman argues that the streetscape presentation of the proposal is dominated by built form with little opportunity for landscaping to achieve an appropriate balance between built form and landscape. He further notes that maintaining a general dominance of landscaping over buildings is a component of the desired future character of the Rosherville/ Wy-ar-gine Townscape in DCP 2012. Finally, Mr Layman argues that the provision of a mechanical vehicle stacker is excessive for a residential dwelling and that a conventional garage is both feasible and a more appropriate outcome. (Exhibit 5)
7. In relation to his second area of concern, the proposed front setback of the upper level, Mr Layman argues firstly that the setback does not complement the existing front setbacks of the adjoining development and secondly that the siting of the upper level exacerbates the bulk and scale of the proposed dwelling. (Exhibit 5)
8. I note that in his oral evidence Mr Layman accepted that on Burran Avenue, in proximity to the subject site, there is no established pattern of setbacks. From my observations of the locality during the on site view I accept this evidence of Mr Layman.
9. In the joint report Mr Aspinal disagrees with Mr Layman's approach to the determination of the desired future character. He places greater emphasis on the recent developments located in proximity to the subject site in determining the desired future character. He notes that: "In particular; at No. 22a Burran Avenue, which presents as a full 2 storey elevation to the street; No. 15c, which presents a part 3 - part 4 storey massing to the street and the 2 recently approved developments at Nos. 14 and 16, Burran Avenue. Again, these present a full site-width 2 storey elevation to Burran Avenue and should be considered the most recent additions that are defining "the future character" of the locality." (Exhibit 5)
10. In response to Mr Layman's concerns about the proportion of landscaping in the streetscape view of the proposed development Mr Aspinall notes that given their orientation to the harbour it is characteristic of the locality for landscaping to be concentrated to the east, rather than to the street. Mr Aspinall concludes that the streetscape presentation of the proposed dwelling is meritorious, compliant with the development controls, and in presenting to the street as a two storey built form is compatible with the existing and desired future character. (Exhibit 5)
11. In response to Mr Layman's conclusion that the upper level of the proposed dwelling adversely increases the bulk and scale of the development Mr Chambers argues: "… Insofar that the Respondent contends that the siting of the uppermost level adversely increases the new dwelling's bulk and scale I make the following observations: - The first floor addition is of limited extent with a GFA of only 44.39m2 - the first floor addition complies with the side setback requirements in the MDCP; - the front setback of between 3.0m and 3.7m is appropriate having regard to the location of other nearby dwellings in the streetscape and in this regard I note the new dwelling under construction at No. 16 which has a first floor element which is larger and closer to the street. - the shape of the first floor of the proposed dwelling is splayed and not 'box' like; and - the height of the first floor above existing ground level is generally 2.0m below the maximum height limit of 8.5m (see DA Drawings DA 210, 211 and 213)." (Exhibit 5)
12. Mr Chambers emphasises that the proposed development is compliant with the three principal built form controls in LEP 2012 which he argues is an indicator of acceptable bulk and scale. Further, he argues that consistent with Mr Layman's emphasis on greater weight to the planning controls in determining the desired future character, the development is fully compliant with the relevant development controls in both LEP 2012 and DCP 2012. (Exhibit E).
13. In relation to the presentation and the streetscape appearance of the proposed dwelling from Burran Avenue Mr Chambers argues that the design of the garage is responsive to both the narrow site frontage and the specific design requirements of the land owner. He argues that the design of the proposal has the following positive attributes for the streetscape:

• the mechanical vehicle stacker allows for a garage with a door width of only 4.5m as opposed to a full double garage.
• no inconvenience or detrimental impacts arise from the use of the mechanical vehicle stacker.
• the mechanical vehicle stacker will meet the needs of the owner of the new dwelling. (Exhibit 5)

1. I note that since the completion of the expert's joint report the amended plans have reduced the overall height of the proposed building. This reduction in height has lowered each of the following roof elements by 200mm: the lift overrun; the roof slab of the upper level master bedroom; the perimeter upstand; and the roof above the access stairs. (Exhibit A) I have considered this amendment in giving weight to the opinions of the experts as to the bulk and scale of the development, its streetscape presentation and the acceptability of the front setback at the upper level.

Findings

1. I accept the submission of Mr Ward that given the narrowness of the subject site, at the Burran Avenue frontage "… any garage (whether single or double garage) would occupy a significant portion of this frontage". Further, I agree and adopt the approach outlined in his submissions that "(t)he relevant DCP controls (which seek to minimise the size of the vehicular crossing and garage) need to be considered in the context of the narrowness of the frontage and the dominance of double garages in the locality". (Respondent's written submissions 5 November 2021)
2. I accept the submission of Mr Hemmings that it is likely that any redevelopment of the subject site will include onsite provision of parking for two vehicles. When read collectively the planning controls in DCP 2012, in my view, seek to minimise the width of both the garage itself and the driveway to provide space in the front setback for landscaping. As part of their joint conference the traffic experts undertook an investigation of the potential to provide a conventional double garage on the subject site. To do so, on their agreed evidence, requires a driveway width and garage door of some 6m width. I accept Mr Chambers evidence that, in contrast, the proposed design provides a reduction in the dominance of the garage in the streetscape and is responsive to the site constraints. I accept and adopt his evidence as summarised at [85]. I am satisfied the streetscape presentation of the development, and the garage in particular, is acceptable.
3. In relation to Mr Layman's concerns about the setback of the upper level of the proposed dwelling, given the lack of established street setbacks the relevant control is P4 in Section 4.2 'Siting and Scale' in DCP 2012. The control states: 'where there is no established patter of setbacks, front setbacks will be considered on their merits'. I am not persuaded that the setback of the upper level generates any detrimental impact. In making this determination I have given weight to the dwellings substantially reduced height when compared with the maximum height development height standard as well as its compliance with setbacks and FSR. In my assessment the presentation of the dwelling to Burran Avenue is acceptable and consistent with the outcomes sought by the planning controls. I accept and adopt the evidence of Mr Aspinal at [81]-[82] in this regard.
4. Further, I am not persuaded by Mr Layman's evidence that the streetscape presentation of the development is incompatible with either the existing character or the desired future character of the locality. I have extracted the locality statement from DCP 2012 below: "(18) Rosherville/Wy-ar-gine Townscape Description of area and character The Rosherville/Wy-ar-gine Townscape is characterised by sloping topography and a north eastern aspect which forms an amphitheatre around Chinaman's Beach and Rosherville Reserve. The topographical variety is one of the most distinctive features of this area. The varied and irregular lot layout has been substantially influenced by topography. Divided, contour based roads and sandstone retaining walls in response to topography are important character elements. Buildings are generally well spaced and oriented to water views to Middle Harbour. The majority of housing is post World War II, with substantial development on Wyargine Point. The area has a diverse architectural character ranging from recent large pseudo-Tuscan villas, contemporary urban courtyard housing, to earlier Sydney School style residences. The quality and character of roof elements is particularly important in this area because of the visibility afforded by the topography. Remnant native Angophora dominated bushland, the open space and foreshore of Chinaman's Beach and Rosherville Reserve, sandstone cliffs and views to Middle Harbour are important features of the area. The area has an exposed landscape with some enclosed valleys. Tree cover varies with remnant bushland, including magnificent Angophoras, and some introduced Norfolk Pines and jacarandas evident throughout the area. Community facilities include Parriwi Park, Rosherville Lighthouse, Rosherville Reserve and Chinamans Beach."
5. Giving weight to the locality statement and the high level of compliance with the development controls prepared by the Council to guide future development, in my view, it is hard to sustain an argument of lack compatibility with the future character that these controls envisage for the locality. There is nothing in the proposed development that would be jarring or incongruous in the streetscape of Burran Avenue. Further, it is appropriate to give weight to new development in proximity to the subject site that are an expression of those controls and their expression in the locality. In doing so I am satisfied that the proposed development is compatible with these recent developments and not incongruent with older housing stock in the locality.
6. Finally, I accept and adopt the analysis of Mr Chambers at [85] as to the potential benefits to the streetscape that arise from the mechanical vehicle stacker. Given my earlier findings about the acceptability of the proposed excavation, I am not persuaded on the evidence that the parking provision, whilst unique, is excessive or that any unreasonable detrimental impacts that arise from it would warrant the refusal of the development application. In making this finding I have given weight to the fact that DCP 2012 provides no express development objectives or development controls in relation to the use of mechanical parking systems in residential dwellings.

The view impacts of the proposed development are reasonable.

1. The Respondent contends that the proposed development application should be refused as it results in unreasonable view impacts. In particular, the Respondent argues that the development application will unreasonably impact views that are currently enjoyed from 15A Burran Avenue, Mosman to the Harbour over the subject site (refer paragraph [10]).
2. The Respondent argues the following controls at 4.3 'View Sharing' in DCP 2012 are relevant to the assessment of view impacts: "Objectives: … Objectives O2: To have the value of existing views from private dwellings recognised and encourage view sharing through building design, location and landscape design, whilst not restricting the reasonable development potential of a site. Planning Controls: … P4: New development should be designed to minimise view loss to adjoining and adjacent properties while still providing opportunities for views from the development itself. P5: Development must not significantly obstruct views enjoyed from living and entertainment areas of neighbouring properties. Views available from other areas within residential buildings generally will not be protected particularly if views are available from living and entertainment areas in the buildings concerned. Views from private dwellings considered in development assessment are those available to an observer standing 1m from a window or balcony edge (less if the balcony is 1m or less in depth). P6: Design solutions must respond graphically to the site analysis outcomes through the use of plans, elevations, photographs and photomontages to demonstrate how view sharing is to be achieved and illustrate the effect of development on views. In some cases, reasonable development may result in the loss of some views, but development must not significantly obstruct views. … P8: Measures to be used to facilitate view sharing include building setbacks, gaps between buildings, minimal floor to ceiling heights, raked ceilings to upper floors, roof forms such as gables or hipped, splay corners and use of open materials for balustrades on balconies and decks."
3. As noted at [18] SREP Sydney Harbour Catchment also contains matters for consideration in relation to view impact from development. I have considered these matters in undertaking an assessment of the view impacts arising from the proposed development.
4. Further, the Respondent argues that the development is inconsistent with the planning principle established in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 at [25] [29]. ('Tenacity')
5. The experts agree that the views enjoyed by 15A Burran Avenue are from the east-facing living areas, bedrooms, front balconies, and terraces across all levels of the building. (Exhibit 5) This conclusion concurs with the visual impact assessment prepared by Urbaine Architectural in November 2020. As part of the onsite view I was able to observe the existing views from the relevant locations within 15A Burran Avenue.
6. It is Mr Layman's assessment that, applying Tenacity, the overall view loss experienced by 15A Burran Avenue as a result of the proposed development will be moderate. However, he notes that some individual view points within 15A Burran Avenue will experience a severe view impact from the proposed development. He further argues that: "125. The views from number 15A [Burran Avenue] that are affected are considered to be high value water and distant foreshore views including the horizon an the land interface. 126. The most significant views are to the east of Middle Harbour, North Head, Grotto Point and Middle Head. The proposal in my opinion would result in an appreciable decrease in the views of these iconic elements. I disagree with the conclusion of the VIA [Visual Impact Assessment] that the proposal 'presents a slight decrease in the overall water view, but not within the range that can be considered iconic'." (Exhibit 5)
7. In his oral evidence Mr Layman argued that, consistent with development control P8, it would be reasonable for the floor to ceiling heights of the proposed dwelling to be reduced to ameliorate the view impact experienced by 15A Burran Avenue.
8. In the alternative, Mr Aspinall and Mr Chambers agree with the Visual Impact Assessment and its conclusions. They emphasis the following in their evidence:

• the view impact that arises from the proposed development is from a compliant proposal, a factor that should be given weight in the assessment of the reasonableness of the impact.
• that the height of the part of the proposed dwelling that generates the view impact is 2m below the maximum height standard in LEP 2012.
• that the view impacted is predominately a water expanse, not a water/ land interface or an obstruction of the horizon. (Exhibit 5)

1. In his oral evidence Mr Chambers emphasised five areas of consideration in the assessment of the reasonableness of the view impact on 15A Burran Avenue as a result of the development. Firstly, that the views currently (and ultimately) enjoyed from the dwelling are expansive and available from a number of living, bedroom and circulation spaces. Secondly, that the room from which the view that is most affected is gained is a secondary living space (an eating area in the kitchen), at a location that is not identified for assessment in DCP 2012. He notes that P5 requires the view impacts assessment should be undertaken standing 1m from the window of a living area. Mr Chambers notes that in contrast the views assessed by Mr Layman as having a severe impact were from a sitting position more than a 1m from the window. Thirdly, that the reduction in the building height (200mm) in the amended plans will reduced any impact arising from the proposed development being less than that assessed in the Visual Impact Assessment. Fourthly, that the proposal is below the maximum height standard of 8.5m in LEP 2012. Finally, that a reduction in the 3.0m floor to ceiling height in either the lower ground or ground floor level will not reduce the height of the bedroom level which causes the view impact as they don't align vertically in the dwelling design.
2. It was Mr Aspinall's evidence that if the control at P5 was strictly applied to assess the view loss from the secondary living area (the location most affected) ie. the view assessment was taken in a standing position, 1m from the glass line, in his view the impact would be classed as minor or moderate.

Findings

1. The planning controls in DCP 2012 direct the assessment of view impacts to specific locations within specific rooms of an affected adjoining property. Further, the controls are directed to controlling significant obstruction of views arising from new development.
2. When these controls are applied to the proposed development and its likely detrimental impact on the views from 15A Burran Avenue on neither the evidence of Mr Layman, Mr Chambers or Mr Aspinall is the planning control at P5 not met. Further, I accept and adopt the evidence of Mr Aspinall and Mr Chambers at [100]-[102] and conclude that the proposed dwelling has been designed to minimise view impacts to adjoining and adjacent properties in a manner consistent with planning control P4.
3. Nevertheless, the proposed development will result in a reduction of views from 15A Burran Avenue to Sydney Harbour, a likely impact that is a matter for consideration under s 4.15(1)(b) of the EPA Act. However, I am satisfied that the view loss impact is not sufficient to warrant the refusal of the development application. My reasoning follows:

• the impact is of a limited width and height within an existing expansive view of the Harbour. In my assessment the impact will not have the effect of changing the character of the view or the experience of its expansiveness.
• The view is gained over the subject property to the Harbour.
• the property at 15A Burran Avenue has multiple locations from within and outside the dwelling where expansive views to the Harbour are available. When assessed collectively in accordance with the planning controls and applying the principle in Tenacity, in my view the likely impact does not reach the threshold of a significant detrimental impact, or one that would warrant refusal of the development application.
• the development which generates the impact is compliant with the controls for setback, maintaining a view corridor to the Harbour beside the proposed dwelling.
• that it is a relevant consideration that the proposed dwelling is materially below the maximum height standard. It is plain that a development closer to the maximum height would have a greater view impact.

1. As a result of the proceeding I find that the view impacts arising from the proposed development are acceptable.

Conclusion

1. Having resolved that the preconditions to the grant of consent relevant to the proposed development are satisfied I have considered and assessed the development application against the provisions of s 4.15(1) of the EPA Act. In particular I have given consideration to the public submissions, which are summarised at [11] and [12]. At the conclusion of that assessment I am satisfied that the proposed development application is worthy of approval, subject to the annexed conditions of consent.

Orders

1. The Court orders that: 1. The appeal is upheld 2. Development application DA/8.2020.283.1 for the demolition of existing dwelling and construction of a new dwelling, swimming pool and landscape works at 22C Burran Avenue Mosman is approved subject to the conditions at Annexure A. 3. The exhibits are returned with the exception of Exhibit 1, A and B

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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: 24 January 2022