The Benevolent Society v Waverley Council

Kentucky Fried Chicken Pty Limited v Gantidis [1979] HCA 20; (1979) 140 CLR 675 Parsonage v Ku-ring-gai [2004] NSWLEC 347; (2004) 139 LGERA 354, Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 CASES CITED: Tenacity Consulting v Waringah [2004] NSWLEC 140 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373

DATES OF HEARING: 15, 16, 17 and 26 March 2010

APPLICANT Mr J Robson SC INSTRUCTED BY Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT Mr C McEwen SC Mr M Staunton, barrister INSTRUCTED BY Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 SENIOR COMMISSIONER: Scarba House at Bondi is listed on the State Heritage Register (the Register). The remnants of its Victorian era garden are separately listed on the Register. These grounds and other elements forming part of the original landholding at the time of construction of Scarba House have been occupied by The Benevolent Society (the Society), a charitable institution, for over 90 years. Over time, the Society has added other parcels to this landholding. The total landholding of the Society at this location (between Ocean and Wellington Streets at Bondi) is ~ 1.6 ha. This landholding is the site upon which the Society proposes the major redevelopment that is the subject of these proceedings. 2 In addition to the early fabric of Scarba House and its heritage listed remnant gardens, there is an eclectic range of other buildings on the site. It is fair to say that this collection of other structures, including a number of additions and attachments to Scarba House and to its sole surviving outbuilding, could be characterised as being of undistinguished presentation and of little or no architectural merit. Indeed, as discussed in more detail later, the additions and attachments to Scarba House have adversely impacted on the heritage values of such of the early fabric that remains. 3 The site has an extensive frontage to Wellington Street and has two frontages to Ocean Street, the next street to the west of Wellington Street - each of these streets runs, in general terms, north-south. Although not precisely so oriented, it is convenient for the purposes of this decision to adopt this orientation to describe elements of the proposal; the surrounding buildings; and the interrelationship between the proposal and surrounding development. 4 The various buildings on the site, although now generally in a vacant state, have been used in the past for activities in support of the social purposes of the Society. These activities ranging from an early childhood care through to aged care accommodation. The buildings that are presently located on the site are low-rise in nature. 5 The locality within which the site is positioned than be seen from the air photo extract below:

6 The residential development surrounding the site to its south, west and north-west is within the 2(c2) Residential - High Density zone under the Waverley Local Environmental Plan 1996 (the LEP). This development is described in more detail later when dealing with the various impacts of the proposal on these existing developments. At the north-eastern end of the site is located a local park that, because of the topography of the area, falls away to the north from its boundary with the site. 7 To the north-east, on the opposite side of Wellington Street, is located residential development of generally modest scale - this development is in a lower density residential zone than that of the residential properties immediately abutting the site. On the opposite side of Wellington Street to the east and south-east is located Bondi Central Public School. 8 The site is generally level whilst, as a consequence of the topography falling away to the north and north-east (more markedly on the Wellington Street frontage and less so on the Ocean Street frontage), depending on the nature of development permitted on the site, the site is capable of providing expansive views toward Bondi Beach and Ben Buckler headland generally to the east; sweeping district views towards Dover Heights to the north-east; and panoramic views to the north encompassing the eastern portions of Sydney Harbour. The proposal 9 The proposal involves the demolition of nearly all of the existing structures on the site with retention of only the original and the near original elements of Scarba House and its remaining outbuilding. In place of all these structures, it is proposed in erect three entirely new buildings and to add a new wing at the rear of Scarba House in its north-eastern corner. For convenience, the three entirely new buildings can be identified as the proposed Ocean Street building; the proposed Wellington Street building; and the proposed north-eastern corner building. 10 It is appropriate, at this stage, to provide a brief overview of not only what would be the resultant built forms on the site but also the extent of the landscape character that which would remain on the site.

The proposed Ocean Street building 11 This building is proposed to be a 10 storey residential apartment building along the Ocean Street frontage but running east-west along the northern boundary of the site. It is to have a ~ 6 m setback from Ocean Street and ~ 9 m and ~ 6 m setbacks to the boundaries of the adjacent residential properties to the north and south respectively. At the south-western edge of this building, there is to be a stepped-down wing that extends somewhat to the south of the main portion of the building. This wing is to have a maximum height of five storeys. The upper two levels at the Ocean Street frontage are to be stepped back further ~ 7 m.

The proposed Wellington Street building 12 This building is proposed to be a residential apartment building to a maximum of 10 storeys in its dominant east-west wing - a wing that will run from the eastern end of the southern driveway access from Ocean Street through toward the Wellington Street frontage. The height of the building at the Wellington Street frontage reduces to four storeys. This building has a small outlying wing at its south-eastern corner which wing is to be four storeys high. A more substantial and connected wing, giving this building an L-shaped footprint, runs along the western boundary of the site south of the southern driveway to Ocean Street. This north-south running wing is to be five storeys high with a roof garden and open space on top. 13 At the outer corner of the junction of these two wings, immediately adjacent to the commencement of the southern driveway leading to Ocean Street, is to be a four-storey element that will incorporate a concierge lobby and a community meeting room. Each of these elements is to be two storeys in internal dimension and covering the entire floor plate of this element of the building. The consequence of this is that there will be only two usable floor spaces in this element. 14 In addition to the concierge space at the western end of the east-west running element of the proposed Wellington Street building, the remainder of the ground floor of the east-west element is to be taken up, from west to east, with spaces for one of the site offices; a commercial hairdressing salon; a convenience store; and a cafe. Each of the three commercial elements is said by the proponent to be ancillary to the proposed major residential elements of the proposal but this is contested by Waverley Council (the council). However, the council, the consent authority for the proposal, says that if these uses are permitted, restrictions to ensure use by residents, those visiting them or staff are required to ensure use of these commercial facilities is confined to being ancillary to the proposal. The necessity for such a restriction is contested by the Society.

The proposed north-eastern corner building 15 The proposed north-eastern corner building is to be five storeys in height with two two-level apartments comprising the first two storeys; two apartments on each of the third and fourth storeys and a penthouse above comprising the entire fifth storey.

Parking for the proposed buildings 16 Each of these three new buildings is to have basement car parking with the access to this basement car parking for each of the buildings to be by separate driveway direct to the basement of the relevant building.

Scarba House 17 Finally, with respect to built form on the site, extensive conservation works are to be undertaken to Scarba House and its remaining original outbuilding. Further, to the rear and in the north-eastern quadrant of Scarba House's immediate curtilage, a new meeting hall is proposed to be constructed attaching to Scarba House - the flat roof of which is to be just below the eaves line of the main element of Scarba House. This new element is to be significantly architecturally distinct from the existing fabric of Scarba House (as will be obvious from the image reproduced later in this decision when dealing with heritage issues relating to this proposed built element and the north-eastern corner building).

Other aspects of the proposal 18 There are a significant number of existing trees on the site that will need to be removed if the proposal is to be approved. As discussed later, a design modification arose during the course of being proceedings that is likely to resolve the issue pressed by the council of the originally proposed removal of Tree 19, a Norfolk Island pine tree listed by the council in its significant tree register. The Society has had an arborist, Mr Morton, assess the trees on the site. My consideration of his analysis of the health of the trees on the site and replacement planting opportunities is dealt with later in this decision. 19 A number of design features of the Ocean Street and Wellington Street buildings should also be noted that the point. The first is that each the major wings of these buildings is designed on the basis that they are a single dwelling thick with the access to the dwellings in the east-west running elements of each building being from the southern side. The result of this is that the vast majority of the dwellings proposed for the site will have very good solar access to their living areas. The second design feature worthy of comment is that the upper levels of the Ocean Street building (at least pending any redevelopment to greater than existing densities of the buildings to the north) will enjoy expansive views to the north toward the eastern end of Sydney Harbour. 20 Similarly, the majority of the apartments in the east-west running element of the proposed Wellington Street building that will enjoy such views whilst those at the lower levels of this building will have a pleasant outlook to the heritage curtilage to and the conserved facade of Scarba House. Finally, with respect to the design of these two buildings, the access to the dwellings from the lift systems is to be by open access spaces with the open side protected from the weather by fixed, angled louvres above a balustrade. The consequences of this, as later discussed, is that these access spaces effect the nature of the built form abutting them. 21 Finally, with respect to the built form of the proposal, I observe that the seven units proposed in the building at the north-eastern corner of the site will have extensive views either to the north and north-west towards the eastern end of Sydney Harbour or toward the north-east and east to Bondi Beach and Ben Buckler headland whilst the penthouse level of this building would enjoy expansive views combining these two view elements. Whilst it is likely that the views from the lower level or levels of this building will experience some filtering of at least part of their views (as a consequence of the vegetation in the park immediately to the north), nonetheless I expect that, overall, the views from these proposed dwellings will be both expansive and significantly attractive. The social purposes of the proposal 22 In addition to the broad social purpose that underpins developments made permissible by State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (SEPP Seniors Living), this proposal has additional social housing dimensions. The first of the two social housing elements is that, on the basis of the proposal before the Court, 30% (42) of the proposed 140 units are to be provided as affordable housing as defined State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP Affordable Housing). This would mean that, as the formulae in SEPP Affordable Housing would currently be applied; such accommodation would be made available to persons with a maximum income of approximately $75,000 per annum and would be made available at a maximum rental of a little over $400 per week. 23 Second, in addition, a further 10% (14) of the proposed units would be made available as social housing for persons of extremely limited means. Both the affordable and additional social housing elements are to be protected for the future by a public positive covenant in favour of the council and would include management provisions to ensure that preferential access was given to citizens from the region. The need for such targeted housing provision was the subject of a deal of evidence given in support of the proposal and noted later in this decision. The issues in the proceedings 24 The council has raised a number of issues in the proceedings. These can be conveniently summarised as follows: o view losses from existing residences; o overshadowing of existing residences; o unacceptable streetscape presentation of the Ocean Street building; o unacceptable streetscape presentation of the north-eastern corner building frontage to Wellington Street; o unacceptable additions to the rear of Scarba House; o unacceptable heritage impact on Scarba House by the north-eastern corner building; o unacceptable loss of trees; o unacceptable height the Ocean and Wellington Streets buildings; o vehicle impacts on the fig tree at the southern of the Ocean Street entrances to the site; and o impermissibility of the commercial uses proposed for the ground floor of the proposed Wellington Street building. 25 In addition, the objectors raised a number of issues that were not pressed by the council. These related to property value impacts; parking availability and traffic levels (including safety for children attending the Bondi Central Public School). Planning controls 26 The site is specifically identified in the LEP as being zoned 5(a) - Special Uses. The objectives of the zone are in the following terms: (a) to ensure the adequate provision of land for community services and infrastructure, and (b) to ensure that development of land in this zone does not adversely affect the amenity of adjoining land.

27 The uses permitted within this zone are described in the LEP as follows: advertisements; the particular land use indicated by red lettering on the Zoning map, (including land uses ordinarily incidental or ancillary to the particular land use indicated on the Zoning map); child care centres; community centres; drainage; open space; roads; utility installations (other than gas holders or generating works).

28 Although, the site is identified on the zoning map as having the special use of "School", this identified use is not reflective of and consistent with more recent uses by the Society but these recent uses would appear to fall within "child care centres; community centres" - however, nothing turns on this in these proceedings. 29 The site is bordered by properties in four other zones. 30 These are zones reflective of the open space in the park to the north-east; the educational purposes of the public school to the east and south-east; lower density residential diagonally opposite the north-eastern corner; and of the high density residential developments along what has been described by Mr Sanders, town planning expert for the council, as 2.5 sides of the site. The relevance of the high density residential zoning that abuts the site is, in my view, the most significant adjacent zoning to be considered for the purposes of these proceedings. 31 As earlier noted, the adjacent residential zoning is the 2(c2) Residential - High Density zone. The objectives of this zone are: (a) to allow for a variety of high density dwelling forms, including boarding houses, dwelling-houses, residential flat buildings and townhouses, (b) to maintain and improve the amenity of the locality, and (c) to allow certain non-residential uses of low intensity which are compatible with the character and scale of the existing locality.

32 Although the LEP does not contain any height, building envelope or floor space ratio controls for this zone, the Waverley Development Control Plan 2006 (the DCP) does contain a number of pertinent provisions dealing with these topics. Relevantly, these provisions for the 2(c2) Residential - High Density zone are contained in the relevant provisions of cll 3.3.3 [height]; 3.4.3 [FSR]; and 3.5.3 [street setbacks of the DCP.

33 As earlier noted, the proposal is rendered in permissible by virtue of the provisions of SEPP Seniors Living. A number of the specific provisions of this SEPP require consideration as the consequence of matters raised by the council or the objectors to the proposal. SEPP Seniors Living 34 This application is made pursuant to SEPP Seniors Living, a facultative environmental planning instrument that has, by virtue of cl 5, the effect of setting aside any provisions in any local planning controls that are inconsistent with the provisions of the SEPP. This SEPP is available to the Society (for its application concerning this site) as the site is adjacent to land which is zoned residential and, as a consequence of cl 4(1) of the SEPP, the provisions of the SEPP are engaged for the site - notwithstanding the fact that the zoning of the site would not otherwise permit such a development as that proposed.

35 A number of other provisions of the SEPP Seniors Living also require to be considered in undertaking the assessment that necessarily follows - not only from the terms of the Director-General's certificate discussed immediately below but also from the general assessment provisions of the SEPP. The effect of the site compatibility certificate 36 For a development such as this one, it is necessary for the proponent to obtain a site compatibility certificate from the Director-General of the Department of Planning (the Director-General). The requirement to obtain such a site compatibility certificate is contained in cl 24 of SEPP Seniors Living. 37 Such a site compatibility certificate was issued to the Society by the Director-General. The certificate is dated 13 May 2008. As discussed below, this date is relevant to one of the two consequences in these proceedings flowing from the site compatibility certificate. 38 The first of the consequences arises from the dating of the site compatibility certificate. The certificate itself contains a note that it is valid for a period of 24 months from the date of the certificate. That annotation reflects the terms of cl 25(9) of SEPP Seniors Living. The consequence of that is that, consistent with the provisions of cl 24(2), I am unable to grant a development consent (that is reliant on this certificate) unless final orders (incorporating the terms of this decision and embodying the required conditions of consent) are given no later than 12 May 2010. 39 The further consequence of that is that, as I discussed with the advocates, Mr Robson SC for the Society and Mr McEwen SC for the council, at the conclusion of the closing submissions, if I were to consider that a development consent should be granted but that I should do so in a form that required amended plans and revised conditions of consent, I would need to allow sufficient time between my decision on the overall shape of the development to be given and the certificate's expiry date of 12 May to permit these implementation processes to be undertaken. As a consequence, if I were to reach such a conclusion (as I have, as set out in the following decision), I would be obliged to give a decision in the week commencing 12 April. 40 To do this has required me to write this decision in a shorter period of time than might otherwise ordinarily have been the case but, as I indicated to Mr Robson and Mr McEwen, if I were to reach a conclusion of the nature to which I have come, I accepted that the social benefits of the proposal warranted me doing so within that time period. That, however, may well have had the consequence that this decision is a little less polished than I might otherwise have hoped that it would be. 41 Although the timing issues are ones capable of being dealt with both by the decision-making process and the necessary subsequent actions of both the Society and the council to give effect to my decision, the other aspect of the terms of the site compatibility certificate has a practical (albeit comparatively minor) consequence on the design of the proposal- at least on my interpretation of the terms of the site compatibility certificate and the context within which it must be considered pursuant to SEPP Seniors Living. 42 To understand this, it is necessary to set out, precisely, the terms of the Director-General's project description in the certificate. It reads as follows: Project description: Demolition of existing buildings (excluding Scarba House), partial excavation of the site and the erection of part 3/part4, part 6/part 8/part 10 storey buildings for use as serviced self-care Seniors Lving housing with ancillary facilities and car parking, together with the refurbishment arid re-use of Scarba House.

43 The Director-General having issued this certificate, the consent authority must then deal with the proposed development in a fashion that is consistent with the provisions of cl 24 of SEPP Seniors Living. One element of this provision requires my consideration of the proposal in light of the terms of the site compatibility certificate. That provision is cl 24(3) which reads: (3) Nothing in this clause: (a) prevents a consent authority from: (i) granting consent to a development application to which this clause applies to carry out development that is on a smaller (but not larger) [emphasis added] scale than the kind of development in respect of which a site compatibility certificate was issued, or

44 Of the various elements of the proposal, it is clear to me that the proposed Ocean Street and Wellington Street buildings fall within the description of part 6/part 8/part 10 storey buildings and are thus given the facultative benefit of the site compatibility certificate. 45 Mr McEwen, quite properly in my view, conceded that the expression in the project description for the renovation and refurbishment of Scarba House should be read as encompassing not only the proposed works to that building but also encompassing the restoration of the remnant outbuilding (as a "men's shed") and also including the proposed meeting room for which approval is sought on the north-eastern corner of Scarba House. 46 However, this position of clarity does not apply to the proposed building in the north-eastern corner of the site. 47 In this context, it is appropriate to note that the project description on the site compatibility certificate has a comma after the expression "part 3/part 4" - as part of the project description. However, the project description, as submitted by the Society for incorporation in the site compatibility certificate, did not include such a comma but sought approval for a project that was described as part 3/part 4/part 6/part 8/part 10 storey buildings. 48 During the course of the hearing, I described the presence of this comma as "infelicitous". However, whether intentional or not, it is a matter to which I must have regard, in my view, concerning the building proposed for the north-eastern corner of the site. That building is proposed to be a five-storey building. 49 The Society's submission seeking the site compatibility certificate includes, at page 31, an artist's depiction of what is proposed to be the project. That depiction shows, as the proposed built form in the north-eastern corner, a building that steps backward from the northern boundary of the site to a building that is, at most, four storeys high at its southern end. There is no doubt that this is one element of the proposal encompassed within the part 3/part 4 storey description. 50 It is clear from the provisions of cl 25(3)(a)(i) noted above that I can only grant development consent to a proposal that is either of the same scale as that contemplated by the site compatibility certificate or is of a lesser scale. 51 Although Mr Robson attempted, valiantly, to persuade me to a different conclusion, I am satisfied that the fifth storey penthouse of the proposed north-eastern corner building does not fall within the project description set by the site compatibility certificate and thus that single apartment does not have the facultative benefit of SEPP Seniors Living. 52 As a consequence, a change that must be made to the proposal is the deletion of one level of that building. However, in light of the approach that I am taking to the various proposed built elements on the site - being an approach that will, for the proposed Ocean Street, Wellington Street and north-eastern corner buildings merely define what is an acceptable overall envelope for each building and leave it to the Society and those advising it as to whether an appropriate and viable project can be established within those boundaries, it is neither necessary nor appropriate that I express any view as to which level of that north-eastern corner building should be deleted. 53 I also note that, when I come to deal with the a detailed consideration of the design of the proposed north-eastern corner building, I have done so on the basis of an assessment in its proposed five level built form so that, within that assessment, the Society can consider which level it would wish to remove. 54 Providing reasons on this basis will also afford the Society with my analysis, should it consider that my conclusion relating to the effect of the compatibility certificate is incorrect and open to challenge, of the nature of what I consider would be the acceptable design of a five storey north-eastern corner building is also available to them. It may also provide a basis for a modification application to reinstate the deleted level. The site inspection 55 I spent the whole day at the site and inspecting the impact of the proposal on properties in the vicinity of the site. During the course of these inspections, I visited a number of apartments in buildings in Ocean and Wellington streets and visited one apartment in Penkivil Street (this street being one street to the west of Ocean Street with this apartment being in a block of units to the west of the proposed Wellington Street building). I heard a wide range of evidence, given informally, during the course of this day. A number of supporters of the project, as well as the objectors to the proposal, gave evidence on the site. In addition, where residents were present in their apartments when I visited that dwelling, they gave informal evidence about their concerns. 56 During the course of this inspection process, I also had the advantage of informal commentary from the expert planners, Mr Neustein for the Society and Mr Sanders, to assist in an understanding of view and overshadowing impacts, as relevant, from the various dwellings visited. 57 I was further assisted with expert arboricultural evidence, from Mr Ussher for the council and Mr Morton, concerning the fig tree in the street reserve at the entrance to the more southern of the two Ocean Street entrances to the site during this inspection. The concerns about this tree related to the impacts on it if it was necessary to remove one or two major limbs for delivery vehicle access - whether during construction or during normal operations of the proposed facility. This matter was subsequently resolved by the terms of agreed conditions of consent restricting use of this access. 58 The inspection of Scarba House in its heritage garden context also included the opportunity to see the other trees on the site that will be removed if the proposal is approved. To appreciate the heritage evidence, with respect to which I was assisted during the site inspection by the heritage experts, views were taken of Scarba House not only from within the site but also from several viewing points in Wellington Street. Social benefit of the proposal 59 I heard extensive, uncontradicted evidence in support of the proposal not merely from a range of persons who are potential future occupants of the premises, a group of persons to might be regarded as giving evidence purely in their own self-interest, but also from a number of persons who have considerable professional expertise in aged care and medical or social issues associated with an ageing population. This evidence was given by: o Professor G A Broe, Professor of Geriatric Medicine; o Professor H Kendig, Research Professor of Ageing and Health o Ms G McFee, Director of UnitingCare Ageing NSW/ACT; and o Ms A Collings, Director, St Vincent's Hospital Community Health Service 60 This evidence supported the broad proposition that the Society's "Accommodation for Life", ageing in place life strategy for more elderly citizens was desirable not only for the occupants but, as I understood the evidence, on an economic as well as social cost efficiency basis. This general approach is also borne out by the social planning evidence and is consistent with the council's Waverley Council Social Plan 2005-10 and the Waverley Council Housing Paper 2007 - noting that these are to be, at least to some extent, supported by the proposal. The proposal does not provide a high level of service delivery from facilities located on the site but adopts a model whereby the Society will act as a facilitator and co-ordinator for the residents to access a range of support services that are able to be delivered to them while they remain in place in their residence rather than moving to a more intensive residential care facility. The evidence of the witnesses listed above strongly supported not only the desirability of this model but also of the extensive local demand for it. 61 The evidence given about the social desirability of and local community demand for such accommodation is relevant material for my consideration as it falls within matters arising from the broad public interest (see Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195). Constructive dismissal 62 Because of what was being submitted to me concerning the social value of the project, I asked the advocates if they objected to me receiving evidence of what might be the consequences of my agreeing to what Mr Sanders said were the appropriate building envelopes of an acceptable development on the site using the footprints of the three buildings in the proposal (Mr Sanders having accepted that the three footprints were appropriate footprints for such a development - although he did not entirely discount the existence of alternative footprints). 63 As a consequence, Ms Squires, the Society's General Manager - Ageing, was directed to provide to Ms Bath, the council's Senior Community Worker - Older People and Access, a position paper concerning the consequences of adopting Mr Sanders' acceptable model. Following the provision of this position paper, Ms Squires and Ms Bath prepared a brief joint report. The joint report and Ms Squires' position paper became evidence (although the financial commentary attached to Ms Squires' position paper was not admitted as such financial data had not provided to the council in the past and the council had not had an appropriate opportunity to consider it and provide evidence in response). As a consequence, my consideration of these issues is constrained and undertaken solely on the basis of Ms Squires' evidence. 64 Although I found the joint report of Ms Squires and Ms Bath of interest, its relevance in the proceedings is, in my view, confined to a comparatively simple proposition. That proposition, from Ms Squires, is that a 90 unit development (that being the development yield on the current configuration that would result from the building envelopes said by Mr Sanders to be acceptable) was not financially viable for the Society and would not be undertaken. 65 In light of that evidence, I sought agreement from the advocates to ask Ms Squires (and provide Ms Bath with the opportunity to comment if she wished - although she subsequently did not wish to do so) what would be the unit yield that constituted the "tipping point" for constructive refusal. It was agreed that she could give such evidence and, as a result, her evidence was that the Society needed to obtain, on the basis of its undisclosed financial modelling, at least 130 units in order to sustain the cost of the project and the provision of the ongoing services of the "ageing in place" philosophy earlier discussed. The "amber light" approach 66 It has been the consistent approach of the Court, over recent years in development appeal proceedings, to assess proposals on what has been described as an "amber light" basis. This approach means that the Court not only considers the question of whether the proposal should be approved in the form that is before the Court but also asking whether the proposal is capable of approval, with specified modifications imposed by the Court, within the scope of the present proceedings. It is in that fashion that I approach the present appeal. 67 Indeed, consistent with this approach, during the course of the expert evidence in all three disciplines - planning, heritage and arboriculture - that I tested a number of "what if?" propositions on those experts. Such propositions were put not on the basis that I had reached even any tentative conclusions concerning any aspect of the proposal but in order to explore whether there were any modifications to the proposal that would cause the council to indicate that an acceptable design had been achieved if such modifications were to be adopted by the Society. 68 Although the exploration of possible modifications did not lead to any agreed position, I was left with a clear understanding of what might be acceptable outcomes from the positions of each of the council's experts. Mr Sanders' view, on planning grounds, was that, if the proposed Ocean Street building included a greater setback from Ocean Street and the removal of four storeys, this building would be acceptable. With respect to the proposed Wellington Street building, provided Tree 19 was preserved, he concluded that this building would be acceptable if four or perhaps five storeys were to be removed from the east-west running wing of the proposed Wellington Street building. The north-south running wing was acceptable as proposed. With respect to the proposed building in the north-eastern corner of the site, he was of the view that there should be a setback to the Wellington Street frontage at the third level and above and that, preferably, three levels warranted removal from this building. He deferred to Mr Moore, the council's heritage expert, concerning heritage issues relating to the proposed building in the north-eastern corner and to the proposed extension to the rear of Scarba House. 69 Mr Moore considered that the proposed extension to the north-east of Scarba House should not be permitted. He was also of the view that any structure in the north-eastern corner of the site should be confined to a maximum of two storeys in height. Elevated representation of the proposal 70 To assist an understanding of discussion which follows concerning the three new proposed buildings on the site, I have extracted two portions of three-dimensional perspectives produced by the Society's architect, Ms Jones, of the proposed buildings for which consent is sought. These also include the existing buildings in the immediate locality. 71 As I do not need to deal with an area as broad as that which is depicted in the total perspective tendered, I have merely extracted those elements that show the more immediate local context of the site and the proposal for it. These perspectives are presented, first, from an elevated position to the east of the site and, second, from an elevated position to the south-west of the site. They are not to any scale - having been extracted as shown only for convenience of the scene depicted.

Consideration of the issues (by proposal element) The Ocean Street building 72 I turn, first, to consider the Ocean Street building. I have earlier noted the planning context arising from the provisions of SEPP Seniors Living and, to the limited extent that it is necessary, the provisions of the council's DCP. The matters that are raised by the council or by objectors with respect to this building are: o interference with views to the north from apartments in 26-30 Ocean Street; o overshadowing of the existing residential flat building immediately to the south at 24 Ocean Street; o presentation of the proposed building's western elevation in the Ocean Street streetscape; and o impact on light (not sunlight) and outlook to the south-east and east from existing apartments in the residential flat building immediately to the north at 16 Ocean Street. 73 The provisions of the DCP describe, in part, for the locality, newer elements of the built form and, in part, the desired future character of the locality. The height controls for buildings in the 2(c2) Residential - High Density zone that are described in Part D of the DCP make it clear that buildings of up to eight storeys in height are contemplated - indeed, some have already been constructed in the locality. In this instance, the Society seeks to go beyond that height control - a matter discussed below. 74 However, with respect to the element of the Ocean Street building that fits within the DCP's prescription, it is this element and, indeed, as further discussed below, the lower elements of the height compliant portion of the building that impact, dramatically, on the views to the north from the existing apartments at 26-30 Ocean Street. 75 During the course of the site inspection, I visited a number of these potentially impacted apartments. During the course of these visits, I stood on the eastern balconies of several of these apartments on the north-eastern corner of the building. From the balconies of the apartments that rise above the buildings to the north, each of these balconies enjoys an expansive view to the north and north-east that encompasses district views to Dover Heights at the north-eastern end of this aspect traversing to the west to encompass a significant portion of Sydney's outer harbour and the entrance to waterways leading from the northern portion of the outer harbour. 76 Several of the residents of these apartments had prepared templates that showed the nature of their view loss in this direction as well as their view loss to the east (this would arise if the proposed Wellington Street building were to be approved). The impact of the proposed Wellington Street building on these dwellings is discussed, separately, as part of the discussion below of what impacts would arise from that proposed building. 77 For all but the uppermost balcony level of apartments at 26-30 Ocean Street, each level has a structural concrete pillar located at the north-eastern corner of the balcony which, for those levels with views affected to Sydney Harbour and Bondi Beach provides a degree of interruption to the view - with the extent depending on the location from which the view is observed. 78 During the course of these inspections, the town planners agreed that all of the view loss in a northerly and north-easterly direction for these apartments would be caused by a building on the site that was compliant with the height controls contained in the DCP. Indeed, as I understood the planners' evidence during these discussions, that view obstruction would have been caused even by a building that was somewhat lower than the maximum height envisaged by those DCP controls. 79 The broad planning principles to be considered when an undertaking an assessment of the acceptability or otherwise of impacts on views were set out by Roseth SC in Tenacity Consulting v Waringah [2004] NSWLEC 140 where he said: 25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

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.

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,

131 At the present time these apartments enjoy unconstrained solar access, at all levels of the building, throughout the whole of the relevant assessment benchmark commonly used - that being the hours of 9 AM through to 3 PM at the winter solstice. 132 The overshadowing impact on these apartments at this benchmark will be "devastating", to use the word of Mr Neustein, the Society's own expert. Although, to a limited extent, these impacts on both the north facing balcony area and the living space behind that of each of these apartments, this exacerbated by the design of the building incorporating recessed balconies and thus living areas set back from the face of the building, the impact created by the upper levels of the east-west running wing of the proposed Wellington Street building on the solar amenity of these apartments is overwhelming - even having regard to this design aspect of the affected building itself.

The planning principle in Parsonage 133 Before turning to the merit issues concerning overshadowing of 22-28 Wellington Street, it is appropriate to discuss the Court's planning principle relating to solar access. 134 The purposes for which the Court publishes planning principles are summarised in material available on the Court's website (as is the list of topics covered by the Court's planning principles together with hyperlinks to the decisions containing them). There are two types of elements contained in planning principles, those that are prescriptive and those that are process oriented. I described the difference between the two in a May 2009 seminar paper entitled The Relevance of the Court's Planning Principles to the DA Process. In this paper, I also discussed the proper role of planning principles and what planning principles are not. This paper is published in the Planning Principle page accessible through the "Quick Links" on the Court's web site.

135 As part of the processes of the Court, from time to time, issues arise where a planning principle may warrant reconsideration. That reconsideration may be of whether, in the light of the Court's experience since the original adoption, it has become apparent that further refinement or expansion was desirable. For example, this was the evolutionary process that has taken place concerning assessment of adverse impacts from extensions of trading hours of licensed premises. The original planning was set out in Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 with an expanded planning principle on the same topic, adopting and building on Randall, being published in Vinson v Randwick Council [2005] NSWLEC 142; (2005) 141 LGERA 27.

136 Similarly, a planning principle can be revised and adapted if experience shows that the outcome of the planning principle is either inappropriate or unresponsive to circumstances.

137 In Parsonage v Ku-ring-gai [2004] NSWLEC 347; (2004) 139 LGERA 354, Roseth SC published a planning principle concerning access to sun light. The planning principle published in that Parsonage is in the following terms: 8 Numerical guidelines dealing with the hours of sunlight on a window or open space usually leave open the question what proportion of the window or open space should be in sunlight, and whether the sunlight should be measured at floor, table or a standing person's eye level. Numerical guidelines should therefore be applied with the following principles in mind, where relevant: * The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong. * The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. * Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours. * To be assessed as being in sunlight, the sun should strike a vertical surface at a horizontal angle of 22.5o or more. (This is because sunlight at extremely oblique angles has little effect.) For a window, door or glass wall to be assessed as being in sunlight, half of its area should be in sunlight. For private open space to be assessed as being in sunlight, either half its area or a useable strip adjoining the living area should be in sunlight, depending on the size of the space. The amount of sunlight on private open space should be measured at ground level. * Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence. * In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development.

138 The fourth dot point above adopts two numerical elements. As to the first, it pays no regard to the orientation of the glazed surface to the sun and, in my view provides no functional assistance in decision making. It has never been pressed to me in any case where Parsonage has been relied upon by a party.

139 As to the second numerical standard, although, perhaps, perverse and counterintuitive, several experts, including Mr Neustein, have pointed out to me that, for a window that has a degree of solar access but does not satisfy the "half the window" test set out immediately above, the simple way to cure the defect (and ensure compliance) is to retain the area of the window that enjoys solar access but to reduce the total window size (by eliminating part of the area that does not receive such sunlight). The result is that the area of the window, by being made smaller, is made compliant with this element of the planning principle.

140 However, this result is clearly both undesirable and inappropriate. As a consequence, in these proceedings, although this element of the planning principle in Parsonage plays a minor role in the otherwise significant overshadowing impact on the windows and balconies of the central and north-western units of 22-28 Wellington Street by the proposed east-west running wing of the proposed Wellington Street building, I took the opportunity to invite the planning experts and the advocates to make any submissions or comments they considered appropriate on whether and, if so, how, the planning principle in Parsonage should be modified.

141 In final submissions, the positions adopted can be briefly summarised as: o those representing the Society were of the opinion that these proceedings did provide an appropriate opportunity to revisit this matter and correct the defect in Parsonage; but o those representing the respondents agreed that there was a defect in Parsonage (as earlier identified) but considered that it was unnecessary to deal with it in the course of these proceedings.

142 Mr Neustein and Mr King, an expert who produced the shadow diagrams contained in the Society's Supplementary Statement of Environmental Effects, combined to reduce a draft of an alternative approach to Parsonage. Their model proposes a fundamental rewrite of the Parsonage principle. I am grateful for their assistance but a fundamental rethink (such as they advocate) going beyond the fourth dot point in Parsonage is not possible given the time constraints on the preparation of this decision.

143 After consideration of the proposal from Mr Neustein and Mr King and consultation within the Court through the process discussed in my paper cited above, I publish below a replacement planning principle on solar access. It adopts Parsonage, except the fourth dot point, and replaces this dot point with two paragraphs that are not numerically prescriptive. It will no longer be appropriate to cite Parsonage as a planning principle.

144 The Court's consolidated and revised planning principle on solar access is now in the following terms: Where guidelines dealing with the hours of sunlight on a window or open space leave open the question what proportion of the window or open space should be in sunlight, and whether the sunlight should be measured at floor, table or a standing person's eye level, assessment of the adequacy of solar access should be undertaken with the following principles in mind, where relevant: * The ease with which sunlight access can be protected is inversely proportional to the density of development. At low densities, there is a reasonable expectation that a dwelling and some of its open space will retain its existing sunlight. (However, even at low densities there are sites and buildings that are highly vulnerable to being overshadowed.) At higher densities sunlight is harder to protect and the claim to retain it is not as strong. * The amount of sunlight lost should be taken into account, as well as the amount of sunlight retained. * Overshadowing arising out of poor design is not acceptable, even if it satisfies numerical guidelines. The poor quality of a proposal's design may be demonstrated by a more sensitive design that achieves the same amenity without substantial additional cost, while reducing the impact on neighbours. * For a window, door or glass wall to be assessed as being in sunlight, regard should be had not only to the proportion of the glazed area in sunlight but also to the size of the glazed area itself. Strict mathematical formulae are not always an appropriate measure of solar amenity. For larger glazed areas, adequate solar amenity in the built space behind may be achieved by the sun falling on comparatively modest portions of the glazed area. * For private open space to be assessed as receiving adequate sunlight, regard should be had of the size of the open space and the amount of it receiving sunlight. Self-evidently, the smaller the open space, the greater the proportion of it requiring sunlight for it to have adequate solar amenity. A useable strip adjoining the living area in sunlight usually provides better solar amenity, depending on the size of the space. The amount of sunlight on private open space should ordinarily be measured at ground level but regard should be had to the size of the space as, in a smaller private open space, sunlight falling on seated residents may be adequate. * Overshadowing by fences, roof overhangs and changes in level should be taken into consideration. Overshadowing by vegetation should be ignored, except that vegetation may be taken into account in a qualitative way, in particular dense hedges that appear like a solid fence. * In areas undergoing change, the impact on what is likely to be built on adjoining sites should be considered as well as the existing development.

Assessment of the solar access impact issue on 22-28 Wellington Street 145 I have earlier set out the evidence about the social worth of the project and, in the context of the proposed Ocean Street building, the extent to which that social worth would justify granting any development indulgence to the Society in the design of that building. 146 I have considered the same social benefit issues in the context of the proposed Wellington Street building and its solar impacts on the apartments at 22-28 Wellington Street. 147 I have also considered, as discussed below in more detail, what opportunities might be available for the Society and its advisers to consider as offsetting any reductions that might be required to the east-west wing of the proposed Wellington Street building. The existence or from such possible partial replacement development possibilities is not a matter, however, of which I have had regard in my balancing of the impact described above and the social benefits of the proposal. 148 With a degree of reluctance (because of what I accept are the undoubted social benefits of the proposal), I am satisfied that the overshadowing impacts on 22-28 Wellington Street require amelioration by modification of the proposed development. This modification can only be achieved by reducing the height of the east-west wing of the proposed Wellington Street building. 149 Doing as best I am able - based on the elevation shadow diagrams, I have concluded that the uppermost four levels of the east-west running wing of the proposed Wellington Street building require removal. Each of these levels comprises five apartments and the resultant yield of the Society's development would therefore be reduced from 140 apartments to 120 apartments (that being a level lower than the 130 apartments is said by Ms Squires, in her evidence, to be the threshold of viability). Additional development opportunities may, however, be available that would offset not only this loss but also the loss of the additional level that requires removal from the proposed north-east corner building (as a consequence of the effect of the terms of the director-general's compatibility certificate) - unless it is reinstated by modification prior to completion of the project. 150 Although the removal of these levels will also have the effect of retaining the views to the north-eastern end of Sydney Harbour from a number of the apartments in the upper levels of 22-28 Wellington Street, this is merely a bonus for those apartments and not a necessary planning outcome for view impact reasons (as earlier discussed). Scarba House 151 Two elements need to be considered in assessing whether the proposed development in north-eastern corner of the site is acceptable. The first of these concerns the proposed conservation works to Scarba House and the proposed addition of a meeting hall at the north-eastern rear of this structure and the second comprises the acceptability of the proposed new north-east corner building. This latter assessment is to be undertaken in two separate contextual perspectives - those being the juxtaposition of the proposed building with Scarba House and the presentation of the eastern facade of this proposed building in the Wellington Street streetscape. 152 I turn to the question of the proposed addition to Scarba House. First, I note that there is no disagreement between the heritage experts, Mr Davies (for the Society) and Mr Moore, that the conservation works to Scarba House and the removal of the accretions and additions to this building and to its remaining outbuilding to the north-west are desirable outcomes of the proposal. Their opinions, however, diverged starkly on the remaining matters concerning Scarba House and its environs. 153 I turn, next, therefore, to deal with the proposed meeting hall structure at the rear of Scarba House. As earlier noted, this proposed meeting hall structure is one with a flat roof which roof is proposed to join the structure of Scarba House below the eaves line at its rear. It is architecturally distinct and contemporary and, when viewed from the public domain in Wellington Street to the south or from portions of Wellington Street to the north or from the public park, will appear as a distinctly different structure - one much more contemporary in nature than the heritage item itself. 154 The view from Wellington Street and from the public park - in both instances looking from the north of the northern boundary of the site - will be filtered to a significant extent by vegetation. Although the row of Juniper trees within the site is proposed to be removed, along this northern boundary, there will remain significant vegetation screening by the trees in the public domain. 155 The meeting hall proposed to be constructed at the rear of Scarba House will be viewed through a comparatively narrow corridor between Scarba House and the building proposed for the north-eastern corner of the site. To some extent, this view, from the public domain, will be softened by additional landscaping to be planted in the vicinity of a present partially tarsealed informal car parking area adjacent to present driveway. However, I do not consider that the softening effect of any such landscaping plays any role in determining the acceptability of this element of the proposal. 156 Essentially, as I understood it, the outcome considered desirable by Mr Moore would be for there to be no meeting hall attached to the rear of the heritage structures and, as a package, the five level building in the north-eastern corner should preferably be replaced with a contemporary design single storey (or at most two storey) structure. This, as I understood his evidence, would mean there were some additional upper elements of Scarba House would be able to be viewed from the opposite side of Wellington Street. However, he supported the location of the footprint of the proposed new building as this would move any built form modestly further to the north than the existing structure - thus creating an additional viewing corridor from Wellington Street to the main elements of Scarba House. 157 On the other hand, it was Mr Davies' evidence, as I understood it, that the removal of the structures that have been added to Scarba House - structures that are more prominently viewable than would be the proposed meeting hall because those existing structures are set further into the space between Scarba House and existing structure in the north-eastern corner - was highly desirable. When coupled with the opening of the new corridor between that new building and Scarba House with its proposed addition, he considered this rendered the proposed addition acceptable. It was his view that these factors, as I understood his evidence, together with the tucking of the roof of the meeting hall structure below the eaves line of Scarba House rendered this proposed addition to Scarba House entirely acceptable. 158 I accept the position adopted by Mr Davies in this regard. I have reached the conclusion that this addition acceptable for a combination of reasons. In part they are linked with and dependent on the conclusion I discuss below concerning the appropriate acceptable built form for a new building in the north-east corner of the site - particularly with respect to the proposed location of the southern facade of such a building. 159 At the present time, despite being use of an homogenising colour scheme for all the elements to Scarba House and the accretions linking Scarba House to the present building in the north-eastern corner, the most immediately prominent element in the view of Scarba House from the south along Wellington Street (and from within the site in the vicinity of future viewing locations if the proposed Wellington Street building is constructed) is of the entirely unsympathetic fire escape stairs attached to the south-eastern corner of the main elements of Scarba House. When looking beyond that, the existing additions extend into the corridor to the north; blocking any view through the site; and denying any sense of separation of Scarba House from the adjacent existing buildings. The nature of the proposed contemporary addition, with its eastern façade being set further to the west than the present structures; its roof being located below the eaves of the main building; and embodying, as it does, a distinctly contemporary design, will ensure that the proposed meeting hall structure is differentiated from Scarba House. 160 Equally, the size and location of the proposed meeting hall structure means that, in viewing perspectives from the south, it will not dominate Scarba House. The creation of the additional viewing corridor to the north between the future built forms coupled with the additional direct viewing corridor that will be created from Wellington Street to the bay window element of Scarba House (by virtue of the new built form in the north-eastern of the site being moved further to the north than the present built form) are also additional positive benefits of the proposal. Finally, when viewed from the north, with the filtered views provided through the vegetation in the public domain (even with the removal of the Juniper trees on the site) will be one where the built form of the proposed meeting hall structure will be distinctly different from (and, in my view, acceptable in) the context of the built form of the heritage item. 161 In addition, the future separation of the two structures in this corner will mean that, from this northern perspective, the heritage structure will also be separated by removing the jumble of unsympathetic additions that have accrued at the rear of Scarba House and that had joined it to the existing unsympathetic building in the north-eastern corner.

The proposed north-eastern corner building 162 As earlier noted, there are two matters that require to be considered relating to this proposed building. The first is its relationship with Scarba House and the second is its presentation in the Wellington Street streetscape. 163 When walking along the eastern side of Wellington Street toward the north, from the point where one passes what is proposed to be the southern facade of the new building, the present structure on the north-eastern corner of the site obscures all views of Scarba House other than the view of approximately the top metre or so of one of the chimneys of the heritage item. The existing southern edge of the existing structure is set further to the south, as earlier noted, than the facade of the proposed new building. A significant additional viewing corridor will be opened from Wellington Street to the heritage item. As earlier discussed, I am satisfied that the creation of this viewing corridor between Scarba House and this proposed structure is a desirable outcome - assisting with a better appreciation of the heritage item than that available at the present time. 164 The building in the north-eastern corner will be distinctly separated from Scarba House and the new meeting hall to be constructed to its rear. Like the new meeting hall, this building is of contemporary architectural design and there is no dispute in these proceedings that the contemporary architectural design of this building, as was also the position proposed for the Ocean Street and Wellington Street buildings, is of high architectural design quality. 165 Mr Moore was of the view that the bulk and scale of this structure was unacceptable in the immediate vicinity of Scarba House - not merely because of its bulk and scale but, as I understood his evidence, also because of its contemporary design. With respect to the question of bulk and scale, I am of the opinion that this needs to be considered in the context of the present structure that is on this portion of the site which, although a single-storey structure, has a pitched roof that makes it, in broad terms, the equivalent of two of the five levels proposed for the new building. The proposed new structure is a comparatively lightly sitting one, in my view, with its design variations on the side of Scarba House providing an additional degree of design differentiation between the two structures (even taking into account the proposed new meeting hall). 166 Although I do not accept that this building should be removed, I am satisfied that the height of this building, in its largely unbroken western façade at the upper levels, is a little overbearing of Scarba House. To cure this, a modest degree of setback of the built form (but not the balcony), on the Scarba House side (but confined to the uppermost level), is appropriate to remove a minor unacceptability of the extent of the bulk of this structure when viewed in its juxtaposition with Scarba House. However, this is a comparatively minor change that can be achieved by setting back the western façade of the dwelling (if it is to remain) on the upper or penthouse level of this building 2.5 m to the east and extending the balcony along this edge of the building. 167 Finally, with respect to the broad design issues of the proposed new built elements for the site, I turn to the question of the presentation of this proposed building in the streetscape of Wellington Street. Before commencing this discussion, it is appropriate to reproduce the eastern elevation of this proposed building from the plans:

168 As can be seen from the elevation, this proposed building sits on top of a sandstone retaining wall within which the garage entrance for the basement car parking for this building is to be inserted. This will involve a reconstruction of the existing sandstone retaining wall and the insertion of the aperture for the garage entrance. 169 The present structure in this corner (although with some recessive effect of its roof), is approximately equivalent, in height, as earlier noted, to two levels of the proposed new building. The proposed new building is to be set further to the north than the present structure - thus having a beneficial effect, earlier discussed, of opening a viewing corridor to Scarba House. 170 Because of the location of Scarba House and the creation of the north-south corridor between the Scarba House and this proposed new building coupled with the desire to have sufficient width of building for two dwellings, east-west, at its first four levels, there is proposed to be only a 600mm setback to the street boundary (as is the case with the present structure). That 600mm street boundary setback extends the full height of the proposed building (although only partially at the first and second levels and for a minor element of the north-eastern element of the balcony at the proposed penthouse level). 171 Mr Sanders considered that this presentation was unacceptable and he preferred that this building be limited in height to two levels - thus approximating the height of the existing structure. If this building were not to be so restricted, however, he considered that the upper levels should be setback somewhat from the street frontage. Mr Neustein considered that the building was acceptable in its present form and that no reduction in height or setback at the upper levels was required.

172 It was Mr Sander's position that the presentation of the proposed building in the north-east corner - proposed to be constructed only 600 mm setback from the boundary to Wellington Street with all or part of the built form at all levels being built to that limited setback - was unacceptable. In particular, it was his view that the lack of setback would be reinforced by the fact that the proposed building would sit, as is the present building at this location, on top of the sandstone retaining wall that forms this portion of the site's Wellington Street frontage. At its northern-most point, the sandstone retaining wall would add the visual equivalent of an additional level to the structure above the footpath level. Mr Neustein, on the other hand, considered that, because of the location of the structure and, as I understood his evidence, the nature of the structure that was being replaced, that which is proposed would be acceptable in its streetscape context.

173 I prefer Mr Sanders' position on this as there are no other structures of a similar nature anywhere in the immediate locality and the overall height of the proposed building, without relief by setbacks at the first four levels, is compounded by it sitting atop the sandstone retaining wall with an adjacent falling away streetscape. This means that a 600 mm setback across all or part of five levels is not acceptable.

174 I have concluded that it is not necessary to remove any of the upper levels (for design or streetscape reasons) but that it is desirable to provide a degree of setback for the upper levels in order to provide a differentiation in the presentation of this building on its eastern facade to Wellington Street. 175 In reaching this conclusion, the necessary redesign of the building may permit retention of a similar number of dwellings within it and that is a matter to be considered by the architect in response to this decision and in considering what might be the orientation of dwellings on the third and fourth levels to provide appropriate amenity for the residents of them. 176 In order to provide these setbacks, I am of the view that it would be appropriate to require setbacks of 2 m from the presently proposed eastern facade of the building at both the third and fourth levels of the building (resulting in a setback of 2.6 m from the boundary at these levels). I further consider that a second step should be provided at the fifth level to provide a further 1 m setback of any built form (resulting in a setback of 3.6 m from the boundary at this level) so that there are two distinct steps in the eastern facade of this building. 177 Whilst accommodation of the required setbacks on the western and eastern sides of the fifth level (if the fifth level were to remain) will reduce the generosity of size of the single penthouse dwelling proposed for this level, such a dwelling, if permitted, would nonetheless still remain, I am satisfied, a generously sized apartment with a significantly attractive outlook. For the third and fourth levels, it may be possible to retain two more modest dwellings on each of those levels. Tree 19 - a Norfolk Island pine 178 Tree 19 is a Norfolk Island pine some 16 m tall. It was planted, it is agreed, during the time shortly after the Second World War. The tree is certainly not a part of the original curtilage plantings of Scarba House. The tree is, however, a significant one in its streetscape and is recorded as a significant tree on the council's register of significant trees. 179 The original proposed design for the proposed Wellington Street building incorporated a driveway design and location that required the removal of this tree. During the course of the site inspection, one alternative option for the relocation of the driveway to preserve Tree 19 was canvassed.

180 After overnight consideration of this option, the Society's architect prepared a plan of a different redesign of the driveway, splitting it to pass on either side of the tree whilst retaining sufficient space for the survival and growth of the tree. 181 Mr Ussher accepted that that, subject to the root mapping and appropriate construction and design constraints being incorporated into the driveway's construction to protect the tree's roots, it was likely that Tree 19 could be retained by such a redesign. 182 I accept his evidence in this regard. Indeed, if further modest modification is required to driveway design in order to ensure appropriate protection of the critical root zone of this tree, I am satisfied that such further modification would be made to the driveway and, if necessary, to the adjacent ground floor area proposed for the cafe space in this building. 183 For these reasons, I am satisfied that the conditions should provide that Tree 19 is to be retained. A modified design of the driveway, after appropriate root mapping has been undertaken (whether by excavation or by ground penetrating radar) is to be incorporated in the plans, to the satisfaction of the council, prior to the issuing of a construction certificate. 184 I also note that, as a consequence of this redesign, there will be no need to move the sandstone memorial gateposts that presently flank the Wellington Street driveway entrance to the site as they can be retained in situ for the southern of the two driveway entrances that will result, for the proposed Wellington Street building, as a consequence of the preservation of Tree 19. Permissibility of commercial uses 185 Mr McEwen submitted that the commercial activities proposed for the ground floor spaces on the proposed Wellington Street building would be prohibited unless their use would be so constrained as to ensure that they were necessarily confined to ancillary uses to the proposed development - that is that they were dominantly used by residents of the facility or those caring for or visiting them. 186 To ensure this, the council proposes that a condition of development consent be imposed that would require the establishment of a system for customers of those commercial facilities to demonstrate that they were a resident or associated with a resident before they could undertake a transaction at any of these businesses. The Society accepts that thes commercial uses must be ancillary only. 187 During the course of the hearing, I suggested that an alternative approach might be one based on advertising restrictions (both at the premises and in the media). Although Mr Robson indicated that such a condition would be acceptable for the Society, it was not acceptable to the council. 188 I consider that the council's position is too restrictive. If the council's condition were to be imposed, it would effectively prevent carers or visitors arriving at the premises making purchases of goods from the convenience store or of takeaway beverages or food from the cafe unless they proceeded to the apartment of the appropriate resident; obtained the necessary identification authority and returned to make their purchases. Such restrictions would, in my view, effectively eliminate any spontaneity of last-minute gift giving or treat taking to residents of the facility - clearly an unacceptable social outcome. 189 As the appropriate initial step to ensure that the activities remain ancillary, an advertising ban both at the site and in all forms of media, including letter-boxing in the neighbourhood, is appropriate. If the council considers that the commercial premises nonetheless trade, when established, on a basis that is not truly ancillary, then the council can contemplate taking such enforcement activity as it might be advised is appropriate. Tree removal 190 A significant number of mature trees require removal from the site if the proposal is to proceed. Tree removal requires consideration because of the terms of cl 33(f) of SEPP Seniors Living - a provision that requires that such a development should retain, wherever reasonable, major existing trees. 191 In addition, Mr Morton's arboricultural assessment of the trees on the site also concluded that a number of further trees should be removed in light of his assessment of their present condition. 192 The most significant of the trees to be removed are a number of the London Plane trees that are located at approximately the mid-point of the east-west running wing of the proposed Wellington Street building. None of the trees that are to be removed form part of the heritage garden listed on the Register. 193 Although there is to be significant removal of trees for development and arboricultural reasons, I am satisfied that the proposed replacement plantings are acceptable under the circumstances (including the necessity to preserve the heritage garden intact). In this context, with respect to the removal of the London Plane trees, I am fortified by the fact that Mr Sanders considered the proposed footprint of the proposed Wellington Street building (and thus, by necessary inference, the removal of the London Plane trees) to be acceptable under the circumstances of the site's constraints. 194 I am, therefore, satisfied that there is no breach of cl 33(f) of SEPP Seniors Living. Additional issues raised by objectors Impact on property values 195 A number of objectors raised their concerns that their own property would lose value if the proposal were to be permitted. In a number of instances, particularly for apartments in 26-30 Ocean Street and in the lower levels of 22-28 Wellington Street, I accept that this may well be the case. However, it is long settled law that such impacts do not give rise to planning considerations appropriate to be taken into account in proceedings such as this. As a consequence, such impacts, if they are to rise, do not provide any basis upon which I would require modification of the proposal - let alone refuse it.

Parking 196 The joint reports from the traffic engineers satisfy me that this issue has bee adequately addressed. Although there is undoubtedly high parking demand in the surrounding streets and parking adequacy was a matter raised in a number of the objections, the expert parking material satisfies me that there is no parking basis upon which I could require modification of the development let alone refuse it.

Traffic and pupil safety 197 A number of the objectors raised concerns about traffic, particularly, as I understood them, in the context of pupil safety of the schools in the vicinity. I am satisfied, on the basis of the material contained in the joint reports from the traffic engineers, that the council's proposed condition of consent that will prevent deliveries being made to the site during morning and afternoon pupil arrival and departure times is an appropriate response. 198 Indeed, I note that, from my observation of parent behaviour in Wellington Street in the vicinity of the school at the time I arrived for the site inspection, irresponsible parent parking (and double-parking!) in restricted and inappropriate areas is likely to be a greater danger to the pupils of that school than any traffic generated by development on the site.

Council advice concerning development of the site 199 During the course of the objector evidence, several spoke of their concerns that they had been advised, by council officers of whom they had made enquiries at the time of purchasing their properties, about what might be permitted to be developed on the site. These residents, particularly those of apartments in 26-30 Ocean Street, said that they had been informed that no high-rise development would be permitted on the site. Whether or not such advice was given and, if it was given, what was the nature of the planning controls on the site at that time (for example State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability - the precursor to SEPP Seniors Living) is not a matter for me to take into account in these proceedings. Whatever recourse, if any, might be available, if such advice was given, is a matter that falls entirely outside the scope of my consideration and is not a planning issue relevant to the proposed development on the site.

The views from the Penkivil Street apartments 200 During the course of the site inspection, as earlier noted, I visited one of the apartments at an upper level in a building in Penkivil Street, the street to the west of Ocean Street. Although this apartment will have a limited obstruction to its views caused by the proposed Ocean Street building and the proposed Wellington Street building (although this latter impact is somewhat reduced by the changes I have earlier set out as being required for this building), the changes in outlook to apartments in this Penkivil Street building will be comparatively minor. They are certainly not as dramatic as the impacts on apartments in 26-30 Ocean Street - being impacts, as earlier described, that are acceptable. 201 Further, there is no additional impact, apart from a small aspect of sky, that will be occasioned to these apartments because of my approval of the additional height of the proposed Ocean Street building. The impacts on the views from the Penkivil Street apartments do not warrant any modification of the proposal let alone refusal of any element of it. Additional development yield 202 Toward the end of the proceedings, I heard short evidence from Ms Jones, the architect who has designed the project. The matters about which I wished to ask her were confined to establishing whether it was possible there might be additional developable volume available, if a project were to be approved that was broadly consistent with that for which consent was sought, where such additional developable volume would not occasion adverse privacy, solar or view impacts on neighbouring properties. 203 She gave evidence concerning three locations that might contain potential additional developable volume of this nature. 204 The first of them is the area above the four-storey element that comprises the north-western corner of the proposed Wellington Street building. Ms Jones indicated that this building element of could not be increased in height because of the resultant impacts, both solar and aspect related, on apartments to the south-west of this element of the built form. As a consequence, I accept that there is no additional developable volume above this location. 205 The second area was the possibility of the addition of extra levels to the outlying element at the eastern end of the proposed Wellington Street building on its southern side. This element of the proposed Wellington Street building is presently proposed to comprise three floors of accommodation, commencing at level one - above the garage entrance, with a roof garden at a level equal to the floor plate of level four of the proposed principal Wellington Street building. Ms Jones indicated that consideration had been given to the possibility of additional, higher developable volume at this location but that this was not possible because of adverse impacts on residences in 22-28 Wellington Street immediately to the south. I understood that these adverse impacts were primarily solar impacts (although there were also lesser elements of aspect impact involved). 206 The third area of possible developable volume about which Ms Jones was asked to comment was whether or not it would be possible to add additional developable volume, from ground level upward, immediately to the west of the outlying wing of the proposed Wellington Street building discussed immediately above. This proposition was put on the basis that any such additional volume would only be contemplated on the basis that any shadow cast by using this space would be subsumed, at the winter solstice, by shadows cast by the major east-west element of the proposed Wellington Street building. She indicated that it would be possible to locate additional developable volume at this location but that there would be a number of consequences of doing so. 207 The first consequence, a self evident one, would be that such apartments would have no solar access as they would face south. However, if such volume were to be developed, I do not consider that this would be unacceptable in an overall development context. I have so concluded for two reasons. First, each such apartment would have an attractive general and open aspect over the setback on the site and the extensive northern setback of the residential flat building on 22-28 Wellington Street to the south. In addition, any units on level 2 or above, that is the third level of development in this space, would be likely to have, at the very least, attractive district views over the school buildings to the south-east and might well have some water view elements beyond that. The second balancing factor is that the overall solar access levels of the entire development would remain acceptable. 208 The second impact of the use of this potential developable volume is on not only such apartment as might be encompassed within such volume but also on those apartments that would be immediately to the north of any such additional volume located apartments. This arises, as Ms Jones explained, because any such additional apartments together with those directly to the north would now be accessed by a corridor enclosed on both sides rather than by the open, louvred walkway component presently proposed along the southern side of this building at all residential levels. 209 The consequence of the creation of a corridor, she said, called into play different Building Code of Australia requirements that would result in the need for fire-rated doors on such apartments on both sides of the corridor space and different glazing requirements for the study spaces within such apartments (these study spaces were identified by the Society as being spaces that could be used, on an occasional basis, by carers who needed to stay overnight to assist the permanent resident of the apartment). 210 I accept that such constraints would exist for any additional apartments in this potentially developable volume and they would also impact on the existing proposed apartments to the north. Whether or not that opportunity is one to be adopted by the Society (in light of both those constraints and the overall conclusion I have reached) is, of course, a matter for the Society and its advisers. 211 However, in concluding that for the purposes of my consideration of the necessary balance I accept arises in these proceedings - on one hand of legitimate planning concerns and impacts on neighbouring properties and, on the other hand, the beneficial social outcomes about a project of this nature would provide - I am satisfied it is appropriate to have regard to this potential developable volume as a partial offset to the loss of developable volume on the main east-west running element of the proposed Wellington Street building that arises as a consequence of my broader conclusions. 212 I have reached this specific conclusion because there are, although on a comparatively limited basis, other areas within the proposal that are accessed by corridors rather than by building edge walk ways. These corridors are located at the eastern ends of both the proposed Ocean Street and the proposed Wellington Street building elements of the proposal. In addition, all the apartments in the proposed building in the north-eastern corner of the site are accessed from an internal lobby and, I infer, are likely to be subject to the same constraints (although drawing this inference is not critical to my conclusion on this point). 213 Further, I observe that, within the mix of apartment sizes proposed for the development, the first two levels of the proposed north-east corner building comprise two-level apartments and, if the number of apartments is more critical to viability than the mix of apartment types within that overall number, an opportunity would appear to exist to substitute two apartments on each of these two levels for the two two-level apartments presently proposed. 214 For the reasons earlier discussed, I have concluded that the east-west element of the proposed Wellington Street building should be modified by the removal of twenty apartments. However, this removal, when coupled with the removal of the fifth level of the building in the north-east corner (as it is not an element of the development permitted by the compatibility certificate), does not mean that I consider that there is likely to be insufficient available developable volume to permit a viable project in light of Ms Squires' evidence as to the "tipping point" for viability. I am satisfied that my overall conclusions do not cause this decision to constitute constructive dismissal. For this reason, I propose to uphold the appeal on the basis of requiring changes to the design in response to this decision. 215 It may well be that further consideration by the Society, during the period permitted by the directions of the conclusion of this decision, will result in the Society determining that the project cannot go ahead based on the more detailed financial modelling information available to them (but which was not in evidence in the proceedings). 216 However, given Ms Squires evidence which was confined to a raw number as a "tipping point" for viability (being 130 dwellings), I am satisfied that sufficient developable volume may exist for this to be achieved without having unacceptable impacts on neighbouring properties for the reasons discussed in this decision. 217 I am also satisfied that, even having regard to the concerns expressed by Ms Jones about the design consequences of using additional volume to the west of the outlier building to the south of the east-west element of the proposed Wellington Street building that, taken overall, there is an appropriate level of amenity available across such a resultant development utilising such volume. 218 Finally on this topic, although during the evidence given by the planners, Mr Neustein explained that the reasons why the meeting room and the concierge/reception area in the four-storey element in the north-western corner of the proposed Wellington Street building were designed in that fashion (each being a two storey high space) and that, in his opinion, no benefit would be obtained by a reduction in height of either space, it would seem to me that it might be possible (but I put it no higher than that) that a redesign of that volume, confined to that existing proposed volume, might also be capable of accommodating at least one additional apartment. Conclusion 219 I have concluded that the proposal should be approved. However, I have reached this conclusion by following the "amber light" process that the Court now takes in development appeals. In doing so, I have concluded that the project requires modification to be rendered acceptable with those modifications relating dominantly (but not exclusively) to the east-west running wing of the proposed Wellington Street building. 220 Further, I have also considered what, on the limited information available to me, might be the modest degree of acceptable additional development volume available that might, at least in part, offset the extent of the changes I consider required. I have had regard to these possibilities (although I cannot be certain in this regard) to be satisfied that the level of development required may be available on the site before my determination would amount to a constructive refusal. 221 Whether or not the proposal is viable on the basis I have determined is acceptable is a matter for the Society and its advisers to consider. The directions given below provide the opportunity for this to occur. 222 In reaching these conclusions, I note that I have had regard, to the maximum extent I consider appropriate under the circumstances, to the socially desirable objectives of the project in determining whether or not the Society's proposal should be permitted to exceed what would otherwise be the constraints on development if I were to have concluded that any development on the site should mimic development otherwise permissible pursuant to the controls in the DCP governing development in the adjacent high density residential zone. 223 I have concluded that the proposal can only be acceptable if it is modified in a number of respects. These required modifications are as follows: o The east-west running element of the proposed Wellington Street building is to be lowered by removing four levels as an appropriate and necessary response to the otherwise unsatisfactory impact on solar access to the apartments in the central and western ends of the northern side of the adjacent building at 22-28 Wellington Street; o Removal of the top level of the proposed building in the north-eastern corner of the site to make it compliant with the maximum project development in the site compatibility certificate; and o Alterations to the setbacks of some elements of the building in the north-eastern corner of the site to make it more responsive both to its position adjacent to Scarba House and its presentation in its Wellington Street streetscape. 224 I am, however, satisfied that there is no need to make any alteration to the works proposed for Scarba House or to the proposed meeting hall to be attached to its rear. There is also no reason to require modification to the proposed Ocean Street building. 225 Finally, as was the agreed position of the parties during the course of the hearing, it is appropriate that the driveway to the proposed Wellington Street building be redesigned so that Tree 19 is retained with a revised driveway layout that does not require relocation of or interference with the sandstone memorial gateposts at the present Wellington Street vehicle entrance to the site. 226 As the changes outlined above are of some import and may impact the viability of the proposal (although, I am satisfied, these changes are both entirely ameliorative in their outcome and are capable of requirement without the project becoming so markedly different as to require a further development application), as discussed with the advocates at the conclusion of the hearing, I do consider it appropriate to allow the Society a modest period of time within which to consider the implications of this decision and whether it wishes to be granted development consent reflecting the terms of this decision. Directions 227 As a consequence, it is appropriate to give directions for the filing and serving of revised plans (settled with the council) reflecting this decision and for the filing and serving of settled conditions of development consent if the Society wishes to be issued such a development consent. 228 However, if the Society concludes that it does not wish to prepare the necessary revised plans in order to provide an appropriate basis for the granting of such development consent but wished to have me treat the conclusions that I have reached as a constructive refusal of the proposal, I will determine the appeal on that basis. 229 To permit this to be considered and for the proceedings to reach appropriate finality in the light of this decision (and to do so prior to the expiry of the site compatibility certificate), I give the following directions: 1. The applicant is to file and serve agreed revised plans reflecting the terms of this decision by the close of business on Wednesday, 28 April; 2. If the applicant complies with (1), the respondent is to file and serve (both electronically by e-mail to the Court for my attention and in hard copy) settled conditions of development consent reflecting the terms of this decision by the close of business on Wednesday 5 May; 3. The matter is set down for mention before me at 8.45 AM on Monday 10 May; 4. If (1) and (2) are complied with, I will make orders in Chambers and vacate the mention on 10 May; 5. Liberty to relist before me on one day's notice, generally, or if any matters arise concerning (1) or (2); and 6. If the applicant does not comply with (1) or exercise the liberty in (5) to seek an extension of the time for compliance with (1), orders will be made in Chambers dismissing the appeal.

14/04/2010 - 1. Duplication oif citation of Zhang v Canterbury City Council2.Deletion of word 'in" - sense of sentence - Paragraph(s) 1. Cover sheet and para 992. Para 223 - first dot point 14/04/2010 - . - Paragraph(s) . 14/04/2010 - . - Paragraph(s) .

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