80 In this instance, I accept that the views that are lost are appropriate to be regarded as iconic. I also accept that the loss of these views, when coupled with the conclusions I have reached concerning the proposed Wellington Street building, will cause a highly significant loss from the total panoramic views now able to be enjoyed from those apartments at 26-30 Ocean Street having that outlook.
81 However, balancing that are two significant factors in favour of the proposed Ocean Street building. The first is that the elements of the proposed building that will obstruct these views are clearly below the maximum envisaged height for structures in the locality from which it is appropriate that this proposal takes its cues. Indeed, although aggregation of titles to enable redevelopment of any of the existing residential flat building sites to the north within the 2(c2) Residential - High Density zone might be difficult (at least under the present legislative framework requiring unanimity of ownership or purpose), there remains, nonetheless, the prospect that redevelopment of other sites to the north can also occur in the future resulting in the same impact on these outlooks.
82 Second, as discussed in Tenacity, it is difficult to preserve views that are views across a side boundary - a proposition I consider relevant to adopt here for the reasons in the paragraph above.
83 The combination of these factors causes me to conclude that impact on the views to the north from apartments in 26-30 Ocean Street does not provide any basis upon which I could refuse approval for this building or require removal of a significant number of levels from it.
84 Indeed, I note that the extent to which Mr Sanders said that he considered that this building should be lowered (by the removal of four levels) before it could be made of an acceptable height would still result in the same significant elimination of views to the north and north-east from the majority (if not all) of the apartments inspected in 26-30 Ocean Street. As Mr Sanders accepts that a significant view loss from the majority of these apartments is appropriate, I also accept his views to that extent but also consider that any additional view losses above the height considered acceptable by Mr Sanders are also reasonable for the reasons earlier given above.
85 During the course of the planning evidence in Court, the planners were asked to comment on what might be the beneficial effects, if any, of removing a vertical section of this building by deleting one unit at each level. They were asked to comment on what benefits might be obtained, as a result of the removal of such a vertical slice from the proposed building if the consequence were to be an increase in the setback at the Ocean Street frontage or, in the alternative, if the eastern edge of the building were to be moved further to the west. The removal of such a single unit vertical section would make available a distance of 8 m for such realignment in each instance.
86 They agreed that, for the impact on views from 26-30 Ocean Street, there would be a minor improvement from viewing points along the northern face of this building but that, even for the balconies at the western end of this building, the improvement was only likely to be minor if the Ocean Street building were to be setback a further 8 m from its Ocean Street frontage. In addition, an overall increase in setback, uniformly across all levels, at the Ocean Street frontage would not cause Mr Sanders to change his opinion about the unacceptability of the height of this building in the Ocean Street streetscape. Accepting this evidence, I conclude that there would be no useful benefit in requiring such a removal and increased western setback.
87 If the removal of such a vertical slice of this proposed building were to result in the eastern edge of the building being moved further to the west, the planners were of the opinion that there would be some minor improvement in the impact on the views from the north-eastern balconies of 26-30 Ocean Street but that that improvement was likely to be confined to an improvement of the district views towards Dover Heights. They did not consider that such an improvement would be significant.
88 Equally, as I understood their evidence, given the design of this proposed building, neither of such possible alterations would provide any improved solar outcome for the residential flat building immediately to the south.
89 In addition, I am satisfied (from my observation during a site inspection from the living room and balcony space of one of the units in the south-eastern corner of the residential flat building immediately to the north of the proposed Ocean Street building) that there would be no significant change in outlook from apartments to the north if the eastern edge of the proposed Ocean Street building were moved further to the west. I have reached this conclusion because the eastern edge of the proposed Ocean Street building would still remain significantly further to the east of the leading edge of this residential flat building - even if the eastern end setback of the proposed Ocean Street building were moved further to the west. Accepting this evidence, I conclude that there would be no significant benefit in requiring such a removal and increased eastern setback.
90 As a consequence of all of this evidence and observation, I am satisfied that there would be no qualitative outcome basis upon which I could found a requirement to remove such a vertical slice of the Ocean Street building - no matter how the space so created would be applied.
91 I turn, next, to consider the objections to the Ocean Street building (with its design footprint remaining unchanged) concerning privacy, outlook and light (not sunlight) impacts on residents of the residential flat building immediately to the north - 16 Ocean Street.
92 The separation between the proposed Ocean Street building and this residential flat building is ~ 12.5 m. Of this distance, ~ 3 m is obtained from the setback of the northern residential flat building and the southern boundary of its allotment and whilst ~ 9.5 m is provided by the setback of the proposed Ocean Street building from the northern boundary of the site.
93 This sufficient separation distance causes me to conclude that this provides no basis upon which any modification of the design could be required for privacy, outlook or light reasons arising from 16 Ocean Street.
94 Further, the overshadowing of 24 Ocean Street would arise from a modest building in this footprint - certainly one no higher than that considered by Mr Sanders to be acceptable (a minimum position I accept). Thus this impact provides no basis upon which to require modification to this proposed building.
95 As a consequence, I have concluded that the impacts of a six storey building (being as high as that agreed by Mr Sanders as appropriate) do not warrant refusal.
96 I must, therefore, now turn to consider whether the social benefits of the proposed Ocean Street building warrant permitting a building of its proposed height at this location. I have concluded that they do for the reasons that follow.
97 As it is clear that the adverse impacts of the proposed Ocean Street building necessarily arise from a structure that falls within Mr Sanders' acceptable height (a height which is two storeys lower than that which is permissible on the adjacent sites immediately to the north and south), I am left to consider whether or not the positive social benefits earlier described warrant permitting additional storeys to be added and, if so, to what extent.
98 In this context, I do consider it appropriate to take guidance from the DCP about what might be the appropriate nature of development that should be permitted on this element of the site. Although the likelihood of redevelopment of the adjacent sites is remote at the present time, permitting development to the maximum height allowed under the DCP would only occasion adverse impacts that were clearly contemplated by the council at the time it adopted the zoning of this area and the relevant controls in the DCP. Such impacts as might occur because of the height controls in the DCP are those that are clearly contemplated by the DCP. In addition, the most significant adverse impacts, those on views to the north from properties at 26-30 Ocean Street are, as earlier discussed, impacts that would arise even if development were to be confined to the height of nominated by Mr Sanders as that which he would consider acceptable. As a consequence, there are no adverse impacts that warrant me not permitting this building to be to at least the height that would be available if the DCP were to apply.
99 In addition, if the DCP were to apply, although it would of necessity be the focal or starting point for my consideration of such a development, it is not a binding restriction and other matters can intervene to set aside its provisions particularly if proper consideration is had of other factors such as those contained in s 79C of the Environmental Planning and Assessment Act 1979 (see Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373).
100 In this instance, the social value of the "ageing in-place" philosophy that underpins the Society's proposed development, in my view, is an element of significant public interest that warrants going a little beyond the controls that would be applicable if the DCP were to apply. The additional elements that should be permitted, because the project is significantly in the public interest, are retention of the present setback proposed at the Ocean Street frontage and permitting the further height (two storeys) of this building by the addition of two extra levels. I agree that the presentation to Ocean Street will also be screened, at least partially, by the existing street trees thus rendering, as was also Mr Neustein's opinion, this streetscape presentation acceptable.
101 Neither of these public benefit based variations occasions any significant additional adverse impact on any property to the south. To the extent that there may be some small additional overshadowing impact at the winter solstice, I am of the view that this is only likely to last for modest period on either side of the solstice and is an acceptable burden on those who might wear it when balanced against the public interest of the additional level of the proposed Ocean Street building (particularly in light of the discussion later in this decision about the "tipping point" for viability of the project and how viability might be retained - despite the modifications that will otherwise be required to be made to the overall project).
102 Indeed, the positive social benefits of a proposal such as this are, in my opinion, appropriate to be taken into account - as doing so it is entirely consistent with the decision of the High Court in Kentucky Fried Chicken Pty Limited v Gantidis [1979] HCA 20; (1979) 140 CLR 675. Although this case is most frequently prayed in aid where there are said to be adverse social impacts of a proposed development, it seems to me that a positive social benefit being taken into account is merely the flipside of the High Court's decision on the legitimacy of social impacts being proper planning considerations.
The proposed Wellington Street building
103 I turn, now, to consider the proposed Wellington Street building. The proposed Wellington Street building will have significant impacts on a number of properties in its vicinity.
104 Before discussing those impacts, it is appropriate to note the constraints that exist on the location of this building on the site. Unlike the Ocean Street building, the side setbacks of which are determined by the boundaries of the site with the adjacent residential buildings to the north and to the south, location constraints for the proposed Wellington Street building arise only in part from the site boundary locations. Of the various elements of the proposed Wellington Street building as earlier described, the site boundary setbacks necessarily influence, significantly, the location of the lower, north-south running return wing of this building at its western and south-western ends.
105 Similarly, the side setback from the southern boundary is also a necessary influence on the design and building. However, the width of the 10 storey, east-west running the element - being a single apartment thick - is determined not by any boundary setback but by the necessary heritage imperative to respect the curtilage and heritage gardens of Scarba House.
106 The impacts of the proposed Wellington Street building fall on apartments in 26-30 Ocean Street; 32 Ocean Street; and 22-28 Wellington Street. These impacts arise not only from the 10 storey east-west element of the building but also from the five-storey north-south running element in the south-western corner of this portion of the site.
107 The impacts of the five-storey element fall on the lower level apartments at the eastern end of 26-30 Ocean Street and on the eastern end apartments of 32 Ocean Street.
108 During the course of the site inspection, I visited affected apartments in each of these buildings. The impacts on these apartments are both on their outlook and on the amount of sunlight that they will receive.
109 Although concerns were also raised relating to visual and acoustic privacy (as the orientation of the apartments proposed for the north-south running wing of the development is to the west because of the access corridor arrangements along the eastern side of this wing), I am satisfied that the extent of the setback from the boundary of this element of the proposal when coupled with the setbacks of the two apartment buildings adjacent is such that these separations are satisfactory. These separations are ~ 20 m from 26-30 Ocean Street and ~ 17 m from 32 Ocean Street.
110 Although the views from the 26-30 Ocean Street apartments due east will be significantly disrupted, the northern of these apartments will, nonetheless, retain a significant view corridor, at least from the northern edges of their balconies, toward Bondi Beach and the Ben Buckler headland, past the northern face of the major east-west running element of the proposed Wellington Street building.
111 In addition, although the views to the east will be eliminated (save as to aspects of sky - for the reasons discussed below), there will nonetheless be retained, for the upper level units in this Ocean Street building, views over the roof of the fifth level of the lower north-south running element at the western end of the proposed Wellington Street building. These views, from at least the upper three levels of this Ocean Street building, will remain as district views together with ocean view elements interspersed to the south-east. These views are obtained through the view corridor that will exist not only as a result of the proposed southern boundary setback of the proposed Wellington Street building but also because of the extensive setback of the building on 22-28 Wellington Street from its northern boundary.
112 In addition, to some extent, there will also remain attractive views (although not of the iconic nature of the views of Bondi Beach, obviously) further to the south of the interruption to the view outlook caused by the building at 22-28 Wellington Street.
113 I earlier set out, in the context of the Ocean Street building, the planning principles concerning view sharing enunciated by Roseth SC in Tenacity. They are equally applicable to the proposed Wellington Street building. Two elements of the Tenacity principles are called into play by this building. The first of them relates to the statement concerning rear boundary views and the second, the statement concerning side boundary views.
114 In this instance, the impact of the proposed Wellington Street building is that the views from 26-30 Ocean Street across the rear boundary of that Ocean Street property would be significantly impacted (but not totally eliminated) in an easterly direction toward Bondi Beach and Ben Buckler headland. In the context of that affectation, it is appropriate to note that Mr Sanders expressed the opinion that the impact on lower-level apartments of the Ocean Street building by the north-south running, five level element of the proposed Wellington Street building was a reasonable impact that was inevitable from any redevelopment in that location.
115 With respect to the proposed 10 storey east-west running elements of the proposed Wellington Street building, Mr Sanders considered that four (or possibly five) levels should be removed from that element of the building. It necessarily follows, therefore, that he agreed that the impact of a six (or possibly five) storey east-west running wing of a Wellington Street building would be acceptable and that, further, a six (or possibly five) storey element for this wing would be acceptable. His conclusions as to the acceptable height for such a structure, as I understood them, primarily arose because of the overshadowing impacts on the central and north-western corner apartments of the building to the south at 22-28 Wellington Street (although he did consider that the view loss from apartments at the upper levels of this building was also undesirable).
116 I also observe that, for the views to the ocean directly to the east from the apartments in 26-30 Ocean Street, the obstruction caused by the proposed Wellington Street building's east-west running element was the subject of discussion during the course of the site inspections in these Ocean Street apartments.
117 Although the Supplementary Statement of Environmental Effects includes a series of photomontage view analyses, including eastward looking view analyses from the upper apartments in this Ocean Street building, the view interruptions depicted are shown as being caused by the western facade of the east-west running portion of the proposed Wellington Street building. However, as this leading element is proposed, at the relevant levels, to be ~ 58 m long with its eastern edge to be at a distance of ~ 70 m or so from the relevant balconies in this Ocean Street building, the significant impacts on views from this Ocean Street building's balconies will be caused by the eastern edge of the top of any roof form of the proposed Wellington Street building - the proposed Wellington Street building being one to have a flat roof.
118 I discussed this perspective analysis rather than an adjacent facade analysis with Mr Sanders and Mr Neustein during the course of the inspection of these Ocean Street apartments. It is my recollection that they agreed with me that the significant view elimination caused by the proposed Wellington Street building would be caused by a structure erected at that location that rose to a height equal to the height of the floor plate of level seven of the proposed Wellington Street building. In other words, the view impact on the majority of the 26-30 Ocean Street apartments that would be caused by levels seven, eight and nine of the proposed Wellington Street building would be impacts on a view of the sky rather than of any ocean elements - let alone the present iconic views of Bondi Beach. The leading edge of the level six floor plate of the proposed Wellington Street building would obscure all ocean views other than those from the uppermost balcony of two level apartment on levels 6 and 7 of the 26-30 Ocean Street apartments
119 As a consequence, I must conclude that the impacts on the views to the east from the 26-30 Ocean Street building is an acceptable consequence of an approvable building of up to at least the structure at what would be the floor plate of level six (that being a hypothetical structure with four levels removed from the present proposal). It follows that the view loss to the Ocean Street apartments, although significant, is nonetheless a consequence of what would be an acceptable building on the site - even making allowance for (but not entirely adopting) the conservative approach advocated by Mr Sanders.
120 I therefore now need to consider the impact of the proposed east-west running wing of the proposed Wellington Street building on the apartments in 22-28 Wellington Street.
121 The impacts on the building at 22-28 Wellington Street are, as earlier noted, ones of views to the north from all north-facing rooms or balconies of this building and impacts on sunlight to the central and north-western apartments of this building. If I were to adopt the higher position of Mr Sanders' conclusions about the height of the east-west element of the proposed Wellington Street building (deletion of four levels of this wing), in addition to rectifying the solar impact noted above, there would also be a significant beneficial effect on the views to the north from a number of the upper levels of 22-28 Wellington Street.
122 In passing, I note that the very generous setback that this building has from its northern boundary combined with the setback that any built element on the site will have from this boundary (being the southern boundary of the site) means that there are no visual or acoustic privacy issues requiring to be considered.
123 I turn, with respect to the impacts on 22-28 Wellington Street, first to the question of view impact. The effect of the proposed east-west running wing of the proposed Wellington Street building will have the effect of eliminating, for the living areas of the central and north-western apartments on the northern face of this building and for all north facing windows on all apartments on the north face of this building, all views to the eastern end of Sydney Harbour and virtually all of the district views to the north.
124 The apartments at the north-eastern corner of this building will still enjoy, for those apartments above the roofline of the school building opposite (being virtually all of these north-eastern corner apartments) expansive and spectacular views to Bondi Beach, Ben Buckler headland and the ocean beyond. These views will not be affected by the proposed Wellington Street building and will remain to be enjoyed from the east facing balcony and living areas of these apartments.
125 Such views as will be impacted for the north-eastern corner are those from the windows of the master and secondary bedrooms. The master bedroom is on the north-eastern corner of the building and its window will still retain oblique ocean views as well as oblique district views. Some but more limited views of these types will also be available from the secondary bedroom of these apartments. The extent and nature of the views retained by these apartments means view impact on these apartments provides no basis upon which I could require any modification of the proposed Wellington Street building.
126 Because the generosity of setback of their own building from their northern boundary, the central and north-western apartments will still retain oblique views to Bondi Beach and Ben Buckler headland and, although to varying extents (depending on whether the view is from the central apartments or those at the north-western corner), will retain some oblique district views to the north-east as well. Although each of the north-western apartments also has a secondary balcony looking west, the views from these balconies are district rooftop views only and, in no way, would be regarded as comparable to the views to the north over the site to the outside portions of Sydney Harbour and its northern waterways.
127 The view loss from the central and western apartments at 22-28 Wellington Street will be significant. However, as with the proposed Ocean Street building, it is appropriate to have regard to the DCP in considering what might be an appropriate built form at the location of the proposed Wellington Street building. A building to the maximum height permitted by the DCP would have the effect of eliminating the views to the north from 22-28 Wellington Street. As noted in Tenacity, sometimes a compliant building may entirely eliminate views. Such consequence is, in my opinion, entirely contemplated by the provisions of the DCP for development in the residential zone from which I consider it appropriate that this proposed building takes its cues. In addition, as also observed in Tenacity, views over side boundaries, as it is here the case, are more difficult to preserve than views over front or rear boundaries.
128 Although the views that would be retained from these apartments would be oblique ones, having regard to the cues in the DCP and the facultative nature of SEPP Seniors Living (when coupled with the fact that the potentially impacted views are across a side boundary), I do not consider that there is any basis founded on view impact to the apartments at 22-28 Wellington Street to require modification to (let alone refusal of) the proposed Wellington Street building.
129 I turn, next, to consider the overshadowing impacts of this element of the proposed Wellington Street building on the central and western apartments of the building at 22-28 Wellington Street. I have had regard, in undertaking this assessment, not merely to the comprehensive plan and elevation shadow diagrams in the Supplementary Statement of Environmental Effects but also to the qualitative evidence from Mr Sanders and Mr Neustein on this topic.
130 The planning framework within which these impacts must be considered is set by cl 35(a) of SEPP Seniors Living where there is a provision in the following terms:
The proposed development should:
(a) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space,