Soutar v Pittwater Council

Soutar v Pittwater Council - [2013] NSWLEC 1199 - NSWLEC 2013 case summary — Zoe

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Planning Framework 9The site is located within the 2(a) (Residential 'A') Zone, pursuant to Pittwater Local Environmental Plan 1993 and the proposal is permissible with consent. 10The proposal is subject to the relevant provisions of Pittwater 21 Development Control Plan (DCP 21). Part A of DCP 21 contains context statements for the various precincts within the municipality and desired character statements for those precincts. The site is located within the Palm Beach Locality and the Desired Character statement, at clause A4.12, includes the following: The Palm Beach locality will remain primarily a low-density residential area with dwelling houses in [of a] maximum of two storeys in any one place in a landscaped setting, integrated with the landform and landscape. 11Clause C1.3 'View Sharing' includes the following relevant outcomes: A reasonable sharing of views amongst dwellings. (S) Views and vistas from roads and public places to water, headland, beach and/or bush views are to be protected, maintained and where possible, enhanced. (S) 12Clause C1.3 includes the following relevant controls: The proposal must demonstrate that view sharing is achieved through the application of the Land and Environment Court's planning principles for view sharing. Where a view may be obstructed, built structures within the setback areas are to maximise visual access through the structure eg by the provision of an open structure or transparent building materials. 13Clause C1.4 'Solar access' includes the following relevant outcome: A reasonable level of solar access is maintained to existing residential properties, unhindered by adjoining development. (En) 14Clause C1.4 includes the following relevant controls: The main private open space of each dwelling and the main private open space of any adjoining dwellings are to receive a minimum of 3 hours of sunlight between 9am and 3pm on June 21st. Windows to the principal living area of the proposal and windows to the principal living area of adjoining dwellings, are to receive a minimum of 3 hours of sunlight between 9am and 3pm on June 21st (that is, to at least 50% of the glazed area of those windows). The proposal must demonstrate that appropriate solar access is achieved through the application of the Land and Environment Court planning principle for solar access. 15Clause C1.4 permits a variation to the controls as follows: Subject to a merit assessment, consent may be granted where a proposal does not comply with the standard, provided the resulting development is consistent with the general principles of the development control, the desired future character of the locality and any relevant State Environmental Planning Policy. 16Clause D12.4 'Height' includes the following relevant outcomes: To achieve the desired future character of the Locality. (S) Building should reinforce the bushland landform character of Pittwater and be designed to preserve and strengthen the bushland character. Building design, location and landscaping is to encourage view sharing between properties. Equitable preservation of views and vistas to and/or from public/private places. (S) 17Clause D12.4 includes the following relevant controls: The maximum height of a building or structure shall be 8.5m. 18Clause D12.4 permits a variation to the height control for steep sites up to a maximum of 10m for minor parts of the building, provided: the outcomes of this control are achieved, the building footprint is situated on a slope in excess of 16.7 degrees (ie 30%), the visual bulk of the development is minimised, particularly when viewed from down slope, buildings are sited and designed to take into account the slope of the land to minimise the need for cut and fill by designs which allow the building to step down the slope. 19Clause D12.8 'Building envelope' includes the following in relation to side setbacks: Planes are to be projected at 45 degrees from a height of 3.5m above natural ground level at the side boundaries to the maximum height (refer to relevant height under Part D Localities). 20Clause D12.10 'Site coverage' includes the following relevant outcomes: Achieve the desired future character of the locality. (S) The bulk and scale of the built form is minimised. (EN, S) A reasonable level of amenity and solar access is provided and maintained. (En, S) 21Clause D12.10 includes the following relevant controls: Maximum Site Coverage (%) Minimum Landscaped Area (%) 40 60

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Impact of the proposal on views from 820A Barrenjoey Road 31The planning experts agreed that the view loss from 820A Barrenjoey Road, as a result of the proposal, is minor, using the quantitative assessment to describe view loss in step 3 of the Tenacity Planning Principle (Tenacity Consulting v Waringah [2004] NSWLEC 140 pars 26-29). 32The Tenacity Planning Principle assessing the loss of views is as follows: 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 33Mr Milligan considers that 820A Barrenjoey Road has lost some foreground view as a result of the proposal, however the view loss is reasonable. Mr Milligan conceded in oral evidence that the 3m ceiling height in the raked ceiling within the main bedroom on the western side is generous and that lowering this ceiling (and the roof) would open up the view of the foliage in the foreground from 820A Barrenjoey Road. 34Mr Milligan conceded in oral evidence that he is 'dealing with what is there now' in terms of the impact of the proposal on the view from 820A Barrenjoey Road and that were the proposal a 'paper application', in his view the proposal should respect Council's controls and that a proposal that goes from compliant to non-compliant does not justify a variation to the view sharing principles. 35Ms Hay considers that the proposal places the 'unrelieved expanse of roof more prominently in the foreground of the view [from] 820A Barrenjoey Road' (exh 3, par 3.1.2.3) and that the unreasonableness of the proposal, by exceeding the height control, means the proposal does not comply with the view sharing principles set out in the Tenacity Planning Principle (exh 3, par 3.2.1.4). 36Mr Milligan considers that the minor view loss from 820A Barrenjoey Road is reasonable because the overall height of the proposal is consistent with the overall height of the neighbouring dwelling at 820 Barrenjoey Road, also in the foreground of the views from 820A Barrenjoey Road (exh 3, par 3.1.1.3).

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Impact of the proposal on solar access to 816 Barrenjoey Road 37The planning experts agree that the proposal has further overshadowed the living areas of 816 Barrenjoey Road when compared to the approved development. They agree that 816 Barrenjoey Road is vulnerable to being overshadowed by a development on the site, as it is to the north of 816 Barrenjoey Road and the dwelling at 816 Barrenjoey Road is positioned adjacent to the shared side boundary between the two properties with its living areas on the northern side. 38Ms Hay said in oral evidence, observing exhibit G (shadow diagrams of the northern and western facades of 816 Barrenjoey Road, each hour on the winter solstice), that the proposal has significantly worsened the overshadowing of the glass doors and verandah of 816 Barrenjoey Road on the northern side during the afternoon on the winter solstice. In her opinion, 816 Barrenjoey would not retain at least three hours of sunlight between 9am and 3pm on the winter solstice. She considers that the non-compliance of the height of the proposal tips the level of solar access loss to the dwelling at 816 Barrenjoey Road from significant but acceptable for the approved development, to unacceptable (exh 3, par 3.3.3.1). 39Mr Milligan says that the proposal has no impact on the solar access of the western elevation of 816 Barrenjoey Road, facing the view. He considers that the setback of the southern elevation of the top floor, which ranges from 2.515 at the eastern end to 6.63m at the western end is adequate. 40Mr Milligan considers that the more significant impact on the solar access to the northern and western decks and adjacent internal areas of 816 Barrenjoey Road is the verandah roof overhanging the northern and western facades and not the proposal (exh 3, par 3.3.2.8). 41The experts agree that the proposal breaches the side setback on the southern side and Mr Milligan says the breach occurs at the parapet of south-western corner, which is the study on the Bedroom Level (First Floor) (exh 3, par 3.5.2.2).

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Height of the proposal 57The planning experts agree that the proposal exceeds the height control of 8.5m (D12.4 of DCP 21) for a small section of the north-western corner of the parapet. They disagree on whether the proposal is entitled to a variation of the height control for steep sites, on the basis of whether the proposal meets the outcomes of the control. 58The relevant outcomes for the height control include: Building design, location and landscaping is to encourage view sharing between properties. Equitable preservation of views and vistas to and/or from public/private places. 59For reasons explained in the following section of the judgment, the increase in the height of the proposal has caused a further detrimental impact on the views from the living areas of 820A Barrenjoey Road, even though the planners agree that this impact is minor. As a result, I am not satisfied that the proposal achieves the relevant outcomes of the height control for view sharing and therefore a variation to the height control cannot be granted. 60The approved development is constructed high on the site. While the location of the approved development is a less common configuration for site layout, being towards the rear of the site, I understand that its location is a response to the unique nature of the site and circumstances and I accept that the location of the approved development results in a better outcome, in terms of the layout of the site, maximising views from the development and its relationship to and impact on views from 816 Barrenjoey Road. However, as the site is steeply sloping and the development is located high and towards the rear of the site, the impact of the height of the development on the adjoining property to the rear is an important consideration. Consequently, there should not be an expectation to necessarily achieve the maximum permissible height limit, let alone exceed it. 61I accept that the height control is exceeded for only a small section of the north-western corner of the parapet, however it is this overall height of the parapet that impacts on the views from 820A Barrenjoey Road and results in the non-compliance of the south-western corner of the parapet (adjacent to the study on the Bedroom Level - First Floor) with the building envelope control (D12.8 of DCP 21). The non compliance of the south-western corner of the parapet with the building envelope control results in unacceptable impacts on the solar access to the living areas of 816 Barrenjoey Road. 62For these reasons, I find that the increased height of the proposal has lead to detrimental impacts on the neighbouring properties and has increased the bulk and scale of the proposal when viewed from Barrenjoey Road and the impacts are of such consequence that the modification application should be refused.

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Impact of the proposal on views from 820A Barrenjoey Road 63I disagree with Mr Milligan that the minor view loss from 820A Barrenjoey Road is reasonable because the overall height of the proposal is consistent with the overall height of the neighbouring dwelling at 820 Barrenjoey Road, also in the foreground of the views from 820A Barrenjoey Road. While the height of the ridge of the hipped roof of 820 Barrenjoey Road RL 21.6 (exh 2, f 174A) is similar to the proposal (RL 21.56 and RL21.58 on the northern side), the highest point of the roof of the proposal is at the western facade, which is the facade furthest away from 820A Barrenjoey Road. The ridge of the hipped roof of 820 Barrenjoey Road is in the centre of the roof, approximately 4m closer to 820A Barrenjoey Road when compared to the western facade of the proposal. The design of the skillion roof of the proposal, with its highest point further away from 820A Barrenjoey Road, results in the height of the proposal having a greater impact on the views from the living areas of 820A Barrenjoey Road compared to the impact of its neighbour's roof, despite being at similar heights. 64I accept the agreement of the experts that the impact of the proposal on the view loss from 820A Barrenjoey Road, as a result of the proposal, are minor, using the quantitative assessment to describe view loss in the Tenacity Planning Principle. 65I also agree with Ms Hay that the proposal exacerbates the unrelieved expanse of roof in the foreground of the view from 820A Barrenjoey Road. 66I understand the purpose of Mr Sattler's submission, that the only portion of the view from 820A Barrenjoey Road lost as a result of the development at the site, including the proposal, is a view of the foliage in the foreground, is to demonstrate that 820A has not lost any of its panoramic views of Careel Bay. However, in my opinion, views of foliage in the foreground of a panoramic water view are preferable to an expanse of roof that dominates the foreground of the view. I noted when standing on the terrace of 820A Barrenjoey Road that it is possible to see filtered views of the land/water interface of the beach and Careel Bay through the trees either side of the western parapet of the proposal, which means that the proposal has obscured any filtered views of the beach through the foliage, albeit a small strip between the approved roof height and the proposal, when viewed from the terrace of 820A Barrenjoey Road. 67In my view, a more skilful design could have achieved the same development potential and amenity and reduced the impact on the views from 820A Barrenjoey Road. The west-east sections through the proposal (Sections B-B Dwg A011 and A-A Dwg A10, exh B) demonstrates that the large central section of top floor of the three levels of the proposal aligns approximately with the western facade on the two levels below and the balcony off the main bedroom of the top floor projects beyond the western facade on all levels. While the proposal steps to the side of this central section, it is the western parapet of this central section that has increased by 1.08m and causes the impact on the views from 820A Barrenjoey Road. A proposal that stepped back from the western facade on the upper level would have minimised the impacts on views from 820A Barrenjoey Road, complied with the height control and possibly avoided the non-compliance with the building envelope control, while maintaining the higher floor levels of the proposal when compared to the approved plans. 68The approved development would have enjoyed expansive bay views from all levels. The increase in the height of the proposal when compared to the approved plans (and the increase in the FFL of the upper two levels) has caused a further detrimental impact on the views from the living areas of 820A Barrenjoey Road. Therefore on balance and considering the principles of view sharing, I am satisfied that the proposal unreasonably increases the impact on views from 820A Barrenjoey Road. 69Furthermore, the unreasonableness of the proposal, as a function of exceeding the height control and the building envelope control for side boundaries, means the proposal does not comply with the view sharing principles set out in the fourth step of the Tenacity Planning Principle.

At a glance

Court

Decision date

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Judgment (28 paragraphs)

Parties

Cases Cited (5)