Throsby & anor v Pittwater Council

Land and Environment Court (NSW)|2015-10-21|Before: Mr P

Solicitors: Pikes & Verekers Lawyers (Applicants) King & Wood Mallesons (Respondent) File Number(s): 10496 of 2015

Judgment

COMMISSIONER: The applicants appeal Pittwater Council's refusal of Development Application N0073/15 for the following development at 7-9 Allen Avenue, Bilgola Beach (the site):

Amalgamation of two residential lots,
The demolition of all existing structures across the two lots,
Removal of trees, and
Construction of a part one, part two storey dwelling house with basement level across the combined site.

The appeal is made pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act). The matter commenced on site as a mandatory conciliation between the parties in accordance with s 34AA of the Land and Environment Court Act 1979 (Court Act). While some progress was made and some contentions settled, the conciliation was terminated and the matter proceeded to a hearing as per s 34AA(2)(b)(ii) of the Court Act.

The site and its locality

The site is located on the eastern side of Allen Avenue, Bilgola Beach. The site comprises two of the seven residential allotments which face directly onto the beach. Vehicular access is from Allen Avenue and there is direct pedestrian access to the beach from each of the existing dwellings on the site. Public access to the beach is via Bilgola Avenue to the south of 1 Allen Avenue and from a reserve at the northern end of Allen Avenue.
The site is trapezoidal and roughly square in shape with an area of 1,274.8m2 and a very gentle slope of two degrees from southeast to northwest.
Both 7 and 9 Allen Avenue are each occupied by one and two storey dwellings; 7 Allen Avenue has a detached garage. Both sites have a number of trees, the most significant of which is a large mature Norfolk Island Pine located in the northern corner of number 9 within several metres of a row of similarly statured Norfolk Island Pines planted in the road reserve along the eastern side of the street.
The plans show that the existing dwelling at No 7 projects forward of the foreshore building line by between approximately 3.5-5m; the dwelling at No 9 projects up to 800mm into the foreshore building line.
Both lots have 1.8m high rendered walls along the street frontage, similar to most properties in the street; and both have low and open boundary treatments to the beach.
The locality is characterised by low density residential development comprising dwellings of one and two storeys on lots of a similar size to 7 and 9 Allen Avenue although there are several larger lots within the Bilgola Beach area within 100m of the site.
The topography of the locality could be described as a natural amphitheatre defined by The Serpentine and Barrenjoey Road at its highest points sloping down to the beach front. Allen Avenue runs parallel to the beach.

The proposal

The actions of the parties and the history of the development application are provided in the Amended Statement of Facts and Contentions (Exhibit 1). The original application included a pool however that element was subsequently deleted.
The applicants rely on the 'Revised Development Application Set' of plans dated August 18, 2015 and accompanying reports.
The proposed development comprises two pavilions connected by a bridge at the upper level and accessible at ground level across an internal courtyard.
The north-eastern pavilion is an L-shaped single storey building with axes along Allen Avenue and the north-eastern side boundary adjoining 11 Allen Avenue. This element comprises mostly bedrooms over a basement incorporating gym, theatre room and bunk room. The flat roof with parapet edge is mostly vegetated with low growing hardy plants with decks on the inner western and northern portions. A proposed hot tub has been deleted and the deck is proposed to be screened with opaque glass to 1.8m in order to ensure the privacy of the occupants of 11 Allen Avenue.
The south-western pavilion comprises two elements, a single storey section along the south-western boundary adjoining 5 Allen Avenue which includes a double garage, kitchen and informal dining area and a two storey element set across and perpendicular to the single storey element approximately 5m from the south-eastern/ beach-side façade and 9m from the north-western/ Allen Avenue façade. The ground floor of this section includes the dining and living rooms; the first floor is a 'master suite' bedroom, bathroom and library. The two storey element sits above a basement workshop, plant room and storage area. The flat roof of the single storey section is mostly vegetated with a southeast-facing deck off the main bathroom.
According to the original Statement of Environmental Effects, the proposed dwelling incorporates a variety of materials and finishes including rammed earth and concrete walls (single storey sections), vertical bi-fold screens, aluminium framed sliding doors and windows. While a rammed earth front wall was originally intended, it is proposed to be replaced by a hedge.

The issues

Council initially contended that the application be refused on ten grounds. As a result of further information and changes to the plans, the following contentions are no longer pressed by council: 1 - Insufficient information, 2 - Inadequate management of coastal hazard, 3 - Development beyond the foreshore building line, 5 - Non-compliance with the front building line control, and 8 - Access driveways and works on the public road reserve.
During the conciliation plans were prepared showing the agreed location of pile walls in order to ensure the protection of the mature and significant Norfolk Island Pine in the front setback. In addition, a detailed condition of consent was prepared by the parties' arborists. As a result, contention 6 - excessive excavation - is no longer pressed.
During the proceedings, a number of minor amendments were made to plans and or conditions drafted to address other issues raised by council including impacts on the visual privacy of adjoining properties (contention 10). These include changes to the ground level door on the north-eastern façade to minimise impacts on the privacy of no. 5 Allen Avenue; deletion of the proposed hot tub and the addition of 1.8m translucent glass screens and changes to the location and or extent of decking on the upper level to minimise overlooking into adjoining properties.
The council contends that the development application should be refused on the remaining grounds:

Harm to the visual amenity, scenic qualities and character of the area and Bilgola Beach as a consequence of the overall bulk and scale of the proposed development (contention 4);
Non-compliance with council's landscaped area control (contention 7) ; and
Unreasonable loss of views from other properties (contention 9).

The assessment framework relevant to the remaining issues

Pittwater Local Environmental Plan 2014 (PLEP) applies. Clause 2.3(2) requires the consent authority to have regard to the zone objectives when determining a development application [emphasis added].
The site is zoned E4 Environmental Living, the objectives of which are:

To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values.
To ensure that residential development does not have an adverse effect on those values.
To provide for residential development of a low density and scale integrated with the landform and landscape.
To encourage development that retains and enhances riparian and foreshore vegetation and wildlife corridors.

Clause 4.1 PLEP considers minimum subdivision lot size however there is no prescribed maximum lot size. It is assumed that the amalgamated lots comprising the site comply with the minimum lot size for the zone.
Clause 4.3 PLEP sets the development standards for height of buildings. Given the visual catchment in which the site is located, the site has a height limit of 8m which is lower than the height limit applicable to most residential development in the LGA. The proposed development complies with the height control.
Development within the coastal zone is considered in cl. 5.5 PLEP. The objectives include implementation of the principles in the NSW Coastal Policy which include: the protection of the environmental, ecological, and aesthetic values and attributes of the NSW coast; to recognise and accommodate coastal processes and climate change; and to ensure that the type, bulk, scale and size of development is appropriate to the location and protects and improves the scenic quality of the surrounding area.
Clause 5.5(2) states that development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered, amongst other things: the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality taking into account the location, bulk, scale, size and overall built form design of any building; the impact of the proposal on the amenity of the coastal foreshore including any loss of views from a public place; and, how the visual amenity and scenic qualities of the coast can be protected.
Similarly, clause 7.8 considers limited development on the foreshore area. Subclause 7.8(3) states that development consent must not be granted under this clause unless the consent authority is satisfied that the development (relevantly) will contribute to achieving the zone objectives and the appearance of any proposed structure, from both the waterway and adjacent foreshore area, will be compatible with the surrounding area.
State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71) applies to the site. Clause 2 provides the aims of the Policy; amongst others, council presses aim (k) which is to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area. Clause 8 lists the matters for consideration which are effectively the same as matters for consideration under PLEP and s 79C of the EPA Act.
Sections of Pittwater 21Development Control Plan (PDCP) apply. The applicable version came into force on 26 May 2015. Part A 1.7 requires the consent authority to be satisfied that any proposed development is consistent with PLEP 2014, the desired future character of the Locality, the applicable development controls, and s 79C, before granting development consent. Part A1.10 outlines the structure of development controls; in particular it notes that the 'controls' are those that a proposed development should satisfy in order to achieve the outcomes the control is seeking to achieve.
PDCP Part C1.1 covers landscaping requirements for residential development. The relevant (summarised) outcomes and controls include: Outcomes A built form softened and complemented by landscaping Landscaping reflects the scale and form of development Retention of canopy trees Retains and enhances biodiversity by using locally native plant species. Enhances habitat and amenity value. Results in a low watering requirement. Controls In all development a range of low-lying shrubs, medium-high shrubs and canopy trees shall be provided or retained to soften the built form. At least 2 canopy trees in the front yard and 1 canopy tree in the rear yard are to be provided… The front of buildings (between the front boundary and any built structures) shall be landscaped to screen those buildings from the street as follows: - 60% for a single dwelling house… Screening shall be of vegetation (not built items), and shall be calculated when viewed directly onto the site. Development shall provide for the reasonable retention and protection of existing significant trees, especially near property boundaries… Variations Where canopy trees are to be retained on a site, planting of additional canopy trees shall be assessed on a merit basis.
PDCP defines 'view' as: Means a mid to distant view containing an attractive feature/s including bushland (particularly escarpments and skylines), water bodies and geographical features including beaches, islands, headlands etc. It may include built form but is predominantly natural in character.
View sharing is addressed in Part C1.3 PDCP. The relevant outcomes and controls are: Outcomes A reasonable sharing of views amongst dwellings. Views and vistas from roads and public places to water, headland, beach and/or bush views are to be protected, maintained and where possible enhanced. Canopy trees take priority over views. Controls All new development is to be designed to achieve a reasonable sharing of views available from surrounding and nearby properties. The proposal must demonstrate that view sharing is achieved through the application of the Land and Environment Court's planning principles for view sharing. Where a view may be obstructed, built structures within the setback areas are to maximise visual access through the structure e.g. by the provision of an open structure or transparent building materials.
Part A4.3 applies to the Bilgola Locality. Relevant extracts are: Context …The locality is characterised mainly by one and two-storey dwelling houses on 550-950 square metre allotments…The residential areas are of a diverse style and architecture, a common thread being the landscaped, treed frontages and subdued external finishes. The Bilgola Locality is characterised by a small steeply rising ridgeline to the north, plateau to the south, and small self-contained valley to the east. Due to the topography, significant views can be obtained through all points of the compass. Conversely, the slopes and ridge tops and headlands of the locality are visually prominent. Due to this visual prominence, the building height along the beach area shall be reduced. Desired Future Character The Bilgola locality will remain primarily a low-density residential area with dwelling houses a maximum of two storeys in any one place in a landscaped setting, integrated with the landform and landscape… The three distinct areas within the Bilgola locality (as identified in Bilgola Locality Map 2) will, by their unique differences, require differing and distinct degrees of control to ensure the individual characteristics and essence of each area are maintained and enhanced. [The other distinct areas are 'The Plateau Area' and 'The Pittwater Foreshore Area'.] The Bilgola Beach Area: Is a visual catchment that is environmentally significant and extremely susceptible to degradation. Its unique local and regional significance requires protection and preservation, and further investigation for listing as an environmental protection and /or conservation area. Strict development controls will apply to this area (including a reduced building height limit to 8m) to ensure that its unique qualities are preserved through development that is sensitive to the area's characteristics. A Visual Protection Area (as identified in Bilgola Locality Map 3) contains particular controls to minimise the impact of development that is visible from public places. The beach, valley and headlands represent a quiet uncrowded environment with no formal commercial activity. Its unique natural, unspoilt, non-commercial character makes it attractive to local residents and visitors alike and reflects the relaxed beach lifestyle. The local topography and natural features, notably the beachfront, headlands and stands of cabbage tree palms in the valley demand different sets of constraints on building design.
The site is identified on Bilgola Locality Maps 2 and 3.
Part D3 PDCP applies specifically to the Bilgola Locality. Part D3.1 Character as viewed from a public place is pressed by council. Relevant outcomes and controls are: Outcomes To achieve the desired future character of the Locality. To ensure new development responds to, reinforces and sensitively relates to the spatial characteristics of the existing built and natural environment. To enhance the exiting streetscapes and promote a scale and density that is in keeping with the height of the natural environment. The visual impact of the built form is secondary to landscaping and vegetation.. High quality buildings designed and built for the natural context.. Buildings do not dominate the streetscape and are at 'human scale'. Within residential areas, buildings give the appearance of being two storey maximum. Controls Buildings which front the street must have a street presence and incorporate design elements (such as roof forms, textures, materials, the arrangement of windows, modulation, spatial separation, landscaping, etc) that are compatible with any design themes for the locality. The bulk and scale of buildings must be minimised. Landscaping is to be integrated with the building design to screen the visual impact of the built form. In residential areas, buildings are to give the appearance of being secondary to landscaping and vegetation.
Side and rear building line controls are specified in Part D3.7 PDCP. Relevant outcomes and controls are: Outcomes The bulk and scale of the built form is minimised. Equitable preservation of views and vistas to and /or from public/private places. To encourage view sharing through the complimentary siting of buildings, responsive design and well-positioned landscaping. Controls For land zoned E4 Environmental Living and located in 'Visual Protection Area' (Bilgola Locality Map 3) - 2.5m to at least one side, 1.0 for the other; rear building line of 26.5m from the front boundary, or established building line, whichever is greater (except where the foreshore building line applies).
Part D3.9 covers Building envelope. The outcomes are similar to those for the controls already listed. Buildings are to comply with the figure shown.
The proposal complies with the controls in Part D3.7 and D3.9.
As the site is classed as environmentally sensitive, Part D3.11 Landscaped area - Environmentally Sensitive Land applies. The relevant outcomes, controls and variations are: Outcomes Achieve the desired future character of the Locality. The bulk and scale of the building is minimised. A reasonable level of amenity and solar access is provided and maintained. Vegetation is retained and enhanced to visually reduce built form. Soft surface is maximised to provide for infiltration of water to the water table, minimise run-off and assist with stormwater management. Controls For land zoned E4 Environmental Living the total landscaped area shall be 60% of the site area. Variations Provided the outcomes of this control are achieved, the following may be permitted on the landscaped proportion of the site: (i) Impervious areas less than 1 metre in width (e.g. pathways and the like); (ii) For single dwellings up to 6% of the total area may be provided as impervious landscape treatments providing these areas are for outdoor recreation purposes only (e.g. roofed or unroofed pergolas, paved private open space, patios, pathways and uncovered decks no higher than 1 metre above ground level (existing)).
Council also presses Part D3.15 Scenic Protection Category One Areas which has essentially very similar outcomes and controls to the other parts of PDCP already described.
Allen Avenue is listed with Bilgola Avenue in Pittwater's Most Scenic Streets Register April 2012. The description states in part: The qualities showcasing the built environment and the natural environment in Bilgola Beach's case; giving these streets their iconic status, are: - Vegetation - avenues of Canary Island Date Palms and Norfolk Island Pines; and - Common themes…the lack of formal road verges on both streets.

The hearing and evidence

The hearing commenced on site and a number of local residents or their representatives made oral submissions objecting to the proposal. Exhibit 4 - Notice of Objectors - includes references to the residents' written objections as well as a record of the comments made on the first day of the hearing. The Court and the parties visited the adjoining properties to the north and south (5 and 11 Allen Avenue), opposite the site (2A and 4B Allen Avenue), and two properties above and to the west of the site (8 and 10 The Serpentine). In addition, the site was viewed from the length of the beach and from the length of Allen Avenue. The issues raised by the objectors are summarised as:

Overlooking into adjoining properties - privacy (nos. 5 and 11);
Loss of light and impact on visual amenity (no. 11);
Potential loss of the Norfolk Island Pine on the site;
Potential impacts on the beach and coastal processes as a consequence of the excavated basement;
Bulk, scale and design - impact on streetscape and character of the beach and locality; and
Impact on views - in particular from 2A and 4B Allen Avenue, and 8 and 10 The Serpentine.

Expert evidence for each party was provided by: Area of expertise Applicants Respondent Planning Mr Ross Fleming* Ms Deborah Laidlaw* Urban design Ms Gabrielle Morrish* Ms Evy Anwar* Visual assessment Dr Richard Lamb* Ms Deborah Laidlaw Landscape Ms Narelle Sonter*** Ms Deborah Laidlaw Arboriculture Mr Ross Jackson** Ms Catriona Mackenzie*** Coastal engineering Mr Peter Horton* [Mr Lex Nielson - by reference]

gave oral evidence in court and assisted on site ** assisted on site but not required in court *** present in court and otherwise assisted

Character - planning

Contention 4 concerns 'harm to the character of the area and Bilgola Beach'. The particulars are summarised as:

Bilgola Beach is of special significance; the site is centrally located on the Beach and is highly visible from the Beach and wider coastline; there is a rhythm of development of regularly spaced and sized buildings with gaps between.
The design of the building, in particular the two storey element parallel to the beach is uncharacteristic and will adversely affect the special qualities and will interrupt the rhythm of development; the scale bulk and design will be at odds with the existing and desired future character.
The ground floor is raised above existing ground level and the generous floor to ceiling height this plus its width will make the dwelling visually intrusive from the Allen Avenue and will interrupt the rhythm of development potentially interrupting views through the site from the public domain and neighbouring properties.
The technical amalgamation is not necessarily a concern however council suggests a redesign of the dwelling by: removing or re-orientating the two storey element into two sections or by rotating the upper storey by 90º; deleting or recessing part of the bedroom wing ground floor level to allow a visual break in the building when viewed from Allen Avenue; recessing or deleting part of the kitchen/dining wing to break the building into two separate entities when viewed from the beach; introducing more landscaping into the front setback; and introducing more landscaping including two taller trees in the central part of the eastern setback.

While the majority of the evidence on the impact of the proposal on the visual amenity, scenic qualities and character of the locality was provided by the parties' urban designers, the parties' planners also considered the contention in their joint report and in oral evidence.
Mr Fleming and Ms Laidlaw agree that the proposal complies with the 8m height standard, the foreshore building line and the side setback and building envelope controls in PDCP. They also agree that in terms of the character of the street there is no particular repetitive or strong rhythm, although Ms Laidlaw considers that most dwellings have some type of roof form. Mr Fleming opines that the strongest elements are front walls and landscaping on the verge.
In Ms Laidlaw's strongly held opinion, the combination of the building's height, uncompromising rectilinear box-like form spanning two lots, lack of sufficient articulation, and parapet roof, while being 'good architecture', is contextually out of place on Bilgola Beach. She maintains that the height of the ground floor above the elevated basement is almost the same height as the adjoining second storey and the strongly horizontal form is devoid of devices such as roof pitches and eaves which act to soften the form of a building. In this respect, Ms Laidlaw considers that the proposal is inconsistent with what she interprets is the low key, relaxed and informal desired future character of the locality. While she acknowledges the proposal is within the 8m height limit, in her view 8m is sufficient to allow for two stories and a roof form. Ms Laidlaw cites 5 Allen Avenue as an example of a development which she considers is a good example of incorporating a second storey into a dwelling.
In the joint report, and in the Amended Statement of Environmental Effects, Mr Fleming addresses the relevant controls in PLEP, PDCP and the aims of SEPP 71. In summary he is of the opinion that in essence, the proposal is for a two storey dwelling in a landscaped setting and is appropriate in the context of SEPP 71, is not harmful to the character of the Bilgola Beach locality, generally accords with the particular standards of the LEP, does not contravene the controls in the DCP and is consistent with the desired future character statement for Bilgola Beach.
Mr Fleming disagrees with Ms Laidlaw's appraisal of the proposal. In his view, the width of the components of the building need to be read in conjunction with the various window treatments and recesses, and he stresses the compliance with all key controls, including the strict controls applying to the Bilgola Beach locality. Mr Fleming maintains that while the building is of a different form to its neighbours it is none-the-less attractive.

Character - urban design

Ms Morrish and Ms Anwar, the parties' urban designers prepared a joint report and gave oral evidence. The urban designers agree that: the proposal complies with council's height, envelope and setback controls; there are no controls that limit the extent or length of the two storey portion of a dwelling other than the setback controls; the courtyard formation, although uncharacteristic of the surrounding built form, maximises natural light, cross-ventilation and improved private indoor-outdoor relationship and does not impact on the appearance from the street or the beach other than to provide separation; the lightweight appearance of the ground floor and colour choice when viewed from the beach is acceptable; and the retention of the Norfolk Island Pine and inclusion of additional trees are positive.
In the joint report, Ms Anwar is concerned that the width of the proposed second storey of 20.5 m, which spans most of the width of the consolidated lots is dominant and exceeds what she says is the average width of 17m and is therefore not typical of the area; given the proposal is situated in a 'Visual Protection Area' it does not address the objective in Part D.13 to minimise the impact of development visible from a public place. She considers that this will set the tone for future development and is counter to maintaining the area's unique character.
In regards to bulk, Ms Anwar opines that because of the raised ground floor, the mostly solid façade causes unnecessary building bulk. She notes that while it complies with the height controls it is higher than the building to the north.
Under cross-examination, Ms Anwar agreed that if the proposal were approved, the area would remain low density residential with a maximum two storeys in a landscaped setting and therefore would align with the desired future character statement in the DCP. She also agreed that the proposed louvres and window treatments would provide a degree of transparency to the building which was a positive element.
In the joint report Ms Morrish provides very detailed responses to the particulars; this was supported by detailed oral evidence. She notes that the proposal complies with the reduced height limit of 8m which was specifically introduced to ensure the preservation of the unique qualities of the locality and it also complies with all building envelope and setback controls. In her view, despite complying with these special controls, it seems that council is imposing a further test to reduce the potential of the dwelling, which in her opinion, is unreasonable.
In response to Ms Anwar's suggestion that the proposed second floor exceeds the 'average', Ms Morrish notes that there are no controls for the width of a second storey and what is proposed more than complies with the side setback controls which are the primary controls determining the width of a building. In any event, and while she questions the relevance of it, on her calculations the average is closer to 19.6m. In support of this opinion she prepared a 'Street Pattern Analysis' based on an aerial photograph of the Bilgola Beach locality measuring the length of the upper levels of dwellings in relation to the width of the lot (attached to the joint report - exhibit 5). Ms Morrish calculates that the upper floor occupies about 56% of the site width which is the same as no. 13 and substantially less than nos. 1, 5 and 11 Allen Avenue. In addition, considering views of the beach are desirable, it is not surprising that the widest parts of most dwellings in the vicinity are along the north-south axis and that council's suggestion to rotate the design of the upper floor through 90º and to break up the other elements is unreasonable. However, in her opinion only considering the second floor is simplistic and takes no account of the gaps between the various elements and the balance of the built form to landscape, which in her view is consistent with the existing character and results in an appropriate rhythm. Ms Morrish also considers that the proposed second storey is set back further from both the beach front and Allen Avenue than its neighbours and is of a relatively narrow depth; in this way the visibility of the second floor is reduced. The house will be viewed from a range of angles, mostly oblique. Further, she maintains the muted materials and colours as well as the contemporary form achieve an appropriate response to the setting.
In regards to Ms Anwar's comment that the proposed dwelling is higher than the building to the north, Ms Morrish reiterates the fact that the dwelling complies with the height limits and there is no control requiring buildings to be the same height as their neighbours.
Ms Morrish notes that there is no predominant style or approach and the architecture in the street varies considerably. With respect to the bulk and scale of the dwelling when viewed from Allen Avenue, Ms Morrish considers that the combination of more solid walls on the ground floor and glass and screen upper floor is not atypical of the of the general form of other dwellings in the street. The transparency of the upper floor will vary as the shutters are opened and closed at different times of the day.
Under cross examination Ms Morrish was questioned as to the accuracy of the 'street pattern analysis' and the lack of ground-truthing and taking into account of eaves. In reply Ms Morrish accepted the limitations of the approach but pressed the overall intent of the exercise was a response to Ms Anwar's comments about the average length of the upper levels of nearby dwellings. Ms Morrish maintained her opinion that the proposal is an appropriate, compliant and architecturally meritorious response to the site which will not harm the character of the locality.

Landscape

Landscaped area is defined in PLEP as: part of a site used for growing plants, grasses and trees but does not include any building, structure or hard paved area. The control in PDCP requires a minimum landscaped area of 60% of the site area. [It is noted that contention 7 at [41] of the Statement of facts and Contentions estimates a landscaped area of 45%].
In their joint report (Exhibit 7), Ms Sonter for the applicant, and Ms Laidlaw for the council, agreed that based on some further amended landscape plans, the landscaped area is 55.8% which takes into account areas beneath elements of the building which project over the ground. During the hearing, some further amendments were made to the plans and included in a further joint statement (Exhibit 12) bringing the area to 56.51% and when combined with 3.19% of impervious area permitted as a variation under the landscaped area control in Part D3.11 PDCP, the total agreed area is 59.7%. However, Ms Laidlaw does not consider the variation should apply as she is not satisfied the proposal meets the relevant outcomes.
Ms Laidlaw is of the opinion that due to the height and form of the single storey element, the proposal requires a greater landscaped setback to provide planting of a sufficient scale and layering to ensure the softening and screening of the building when viewed from Allen Avenue. In regards to the extent of landscaping on the beach side, Ms Laidlaw considers that the one Banksia in the south-eastern corner and the two in the north-eastern corner provide no screening of the middle of the building and are unlikely to attain the height of the two storey element, especially given the exposed site. She states that sufficient landscape of a commensurate scale to effectively mitigate the visual impact of the dwelling from the public domain cannot and has not been achieved
While she accepts that the green roof will soften the appearance of the dwelling when viewed from upslope, Ms Laidlaw considers it provides no benefit to the building when viewed from the ground and may lead to privacy issues for neighbouring properties when the plants need to be maintained.
Ms Laidlaw's fundamental concern is that the form, height, design and massing of the building are problematic and landscape cannot be relied upon to screen development. In this regard she maintains that apart from the numerical non-compliance with the 60% control, on merit, the proposal does not achieve the outcomes of the Landscape Area controls in Part D3.11 PDCP.
Ms Sonter considers that the existing streetscape is characterised by the dominant scale of the Norfolk Island Pine, plus palms and Strelitzia in the verge - almost all of which will be retained and reinforced with species of clumping and single-trunked palms; in her opinion this will balance any suggested bulk of the built form. She notes that in addition, a range of other species of varying heights and forms, including a hedge along the front boundary, will also soften and punctuate the building when viewed from Allen Avenue. Ms Sonter agrees that parts of the building will be seen from Allen Avenue however she opines that the balance between built form and landscape will be both characteristic and acceptable.
In regards to the views of the site from higher vantage points, Ms Sonter considers that the built form will be dominated by the very large scale Norfolk Island Pines and will be otherwise framed by vegetation. She states that side boundary hedges to 4m and the layering of other plantings, as well as the canopies of the Banksias will appear to wrap the building when viewed from the beach. Ms Sonter also notes that the having little landscaping in the central portion of the dwelling is also characteristic of other beach-side dwellings, however when viewed from a distance and from the water she maintains that the built form will sit below the backdrop of taller trees and the amphitheatre of the Bilgola area beyond.
With respect to the applicability of the variations to landscape area, Ms Sonter considers it reasonable to rely on some 4% as hardscape including the front entry path through the garden, and the reflective pool, as these are for outdoor recreation purposes.

Views

Council's contention 9 - 'unreasonable loss of view to neighbouring properties' was considered by the parties' experts, Ms Laidlaw for the applicant and Dr Lamb for the council. The experts applied the Planning Principle on view sharing published in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140.
The contention and particulars are as follows: The proposed development fails to demonstrate a reasonable sharing of views between properties and would result in an adverse impact to the amenity of surrounding properties. Particulars It is contended that the nature and extent of the views currently gained from the neighbouring properties at 2A Allen Avenue, 4B Allen Avenue and 10 The Serpentine, which would be lost as a result of the proposed development is excessive and unreasonable. The development fails to demonstrate a reasonable sharing of views.
In their joint report (Exhibit 8), the areas of agreement are principally in regards to the technical aspects of the photographs used in recording views from affected properties however, there are also areas of agreement about the impacts on views from the listed properties. The experts also agree that in relation to the proposal's compliance with controls (the Tenacity 'reasonableness' test) the proposal is compliant with the height, building envelope and setback controls - being the controls most relevant to the question of view loss. At the end of the joint report is table in which each property is assessed by each expert against the assessment steps in Tenacity.

2A Allen Avenue

2A Allen Avenue is to the northwest and opposite 7 Allen Avenue. The dwelling is located towards the rear of the lot. The experts agree that: the proposed development, in particular the upper level, would remove the central section of the view of the ocean framed by the existing dwellings and landscape at 7 and 9 Allen Avenue that is available from the living area and terrace of this property; a smaller rectangle of ocean view would be recaptured to the north and would be wholly or partially filtered by vegetation; the current view is of the ocean and the distant horizon and not the land/water interface or the beach; the view to the ocean to the immediate north and south is highly screened by buildings and vegetation; there is an acute angled view of the southern headland from the front terrace; the view is seen across the front boundary from indoor and outdoor principle living areas from both sitting and standing positions.
Ms Laidlaw assesses the impact to be a severe loss of highly valued ocean views framed by built form and landscape elements. In her opinion, while the proposal complies with the controls it is an unmodulated built form and lowering the height of the dwelling and providing a gap in the first floor would show more sensitivity to the nature of the views from 2A Allen Avenue.
Dr Lamb considers the lost view is undifferentiated water partly visible above existing built form and vegetation and the impact is moderate. He agrees with Ms Laidlaw that about 50% of the view will be retained/ recaptured; in his opinion this is reasonable however he maintains that removing the top floor or constraining the building to significantly below the permissible height is unreasonable.
The owner of this property expressed concern over the lack of detail in the photographs included in the joint report; she maintains there is a filtered view of white water which will be lost.

4B Allen Avenue

This property is opposite 9 Allen Avenue and further to the north-west of the site and much closer to the street frontage than no. 2A. The nominated viewing points are from the first floor bedroom and through a circular window on the stairwell landing as well as a garden sitting area/viewing deck at the very rear of the property. There are no ocean views available from the ground floor.
The owner of this property voiced similar concerns in regards to the level of detail shown in the photographs; she maintained that it is possible to see breaking waves through the circular window and that the loss of this view is not a negligible impact. With respect to the viewing deck at the rear of the property, the owners stated that this was built specifically to enjoy the view and that the view of the flags and beach goers will be lost.
The experts agree that: the view from the bedroom and circular window could be characterised as a 'glimpse' filtered by trees and does include the breaking waves and a very narrow sliver of beach; the proposal will remove this view (as well as most of the sky when viewed through the circular window); the land/water interface including the surf break would be lost from the upper deck but a small area of water would be captured at the northern end; the view of the ocean would be retained from the upper deck as would the filtered views of the northern and southern headlands; and internal views are from standing positions with sitting and standing views available from the upper deck.
Dr Lamb opines that there are no significant ocean views from the first floor and assesses the impact as minor; Ms Laidlaw considers that while they are only water glimpses, as this is the only view opportunity from within the property which allows for a connection to the beach, they must be regarded as valuable and the impact is severe from inside the dwelling and moderate to severe from the viewing platform. The experts maintain the opinions they expressed in regards to the reasonableness of the proposal.

10 The Serpentine

This property is up slope and to the rear of 4B Allen Avenue. The main living area of the two storey dwelling is on the upper level with bedrooms and a rumpus room, used as a home office by the owner, on the lower level. The experts agree that there are extensive views of the ocean, headlands, ocean pool, surf break and beach from the upper level. There is a similar but more limited and filtered view from the lower level. The proposed development would remove the eastern portion of the surf break and beach interface but all other elements of the view would be retained. The experts agree that the impact of the proposal is moderate in regards to the views of the land/water interface and breaking waves on the beach.
The owner of this property stated that the view of the headlands was not as important as the central portion of the beach which often included the lifesavers and beach users. She was also concerned that her business clients would also lose the view.
Ms Laidlaw considers that the 'replacement' view, that is the proposed dwelling, is unsympathetic and in her opinion breaking up the design would reduce the impact on views from this location. Dr Lamb does not agree.

8 The Serpentine

While not considered in the joint report, at the request of the owner, the Court and the parties visited this property. This property is at the rear and upslope of 2A Allen Avenue. It is similarly elevated to no. 10 The Serpentine. The main viewing areas are the living room/kitchen and adjoining terrace. The views are similar to those obtained from no. 10, however as the dwelling is orientated more to the south, there are uninterrupted views of the southern end of the beach, ocean pool and headland. In Ms Laidlaw's opinion the impact of the proposal on the views from this dwelling is minor; Dr Lamb considers the impact will be moderate.

Coastal engineering

As questions were raised about the necessity of the height above natural ground level of the finished floor level of the ground floor, Mr Tomasetti called Mr Norton of Royal Haskoning DHV Australia, the applicants' coastal engineer, to clarify the matter. Mr Norton referred to a 'Coastal Risk Management Report' prepared after a meeting with the council's consultant, Mr Lex Nielson of WorleyParsons (Tab 5, Exhibit A). The meeting was held to discuss issues raised in the Statement of Facts and Contentions and in other correspondence from WorleyParsons. The report discusses the modelling used to determine appropriate levels to minimise the risks to the proposed buildings and neighbouring properties as a consequence of over-topping waves. The report includes the following agreed comment: …it is considered that a Coastline Planning Level of 0.5m above the natural ground levels is adequate to accommodate oceanic inundation from wave overtopping during severe storms, where natural ground levels will be 7.2m AHD and the proposed floor level is 7.7m AHD (equal to the Coastline Planning Level).
The report also notes that the shape of the proposed development would be less likely to divert wave overtopping to adjacent development than the existing development and therefore there will be less impact, if any, on adjoining properties.
It was discussed that the ground level of 7.2m AHD was that of a levelled site accommodating the slight change of level across the consolidated lots. The existing ground levels are approximately 6.85m at No. 9 Allen Avenue and 7.34m at No. 7.

Submissions

Mr Tomasetti for the applicants made detailed oral submissions in which he addressed the contentions in the light of the expert evidence and against council's controls. With respect to character he presses the evidence of Ms Morrish that there are many architectural styles but no particular rhythm of development in the street. With respect to its visual impact from the beach, Mr Tomasetti observes that: the rising dune partly obscures the building from the front; the proposed landscaping and generous side setbacks, particularly at the upper level, obscure the building when viewed from the ends of the beach; the upper floor is partly transparent and below the special maximum height; the backdrop of the pines and the amphitheatre remain; and thus overall the outcome will be acceptable and highly pleasing contemporary building. He contends that the building does not attempt to achieve the maximum permissible footprint and achieves a balance between built form and landscape and which remains at a 'human scale' as explained by Ms Morrish. Mr Tomasetti submits that while it will have a street presence, the proposal achieves the desired future character of the locality as it is a dwelling house of a maximum of two storeys, in a landscaped setting and integrated with the landscape, something he notes with which Ms Anwar agreed.
In regards to bulk and scale and the height of the floor level, Mr Tomasetti maintains that this is no architectural aspiration but a level set by the engineers at the lowest possible level to achieve an acceptable coastal planning outcome.
Mr Tomasetti asserts that the council's focus on the second storey element and the suggestion to break it into two parts is not reflected in any of council's planning instruments and while there may be other designs, this is the design before the court, and regardless of design there may be other impacts. He contends that it is important to consider what is reasonable and what impacts are acceptable. As the beach is orientated from north to south he submits it is therefore reasonable to orientate the dwelling in that direction as the neighbouring properties have done.
With respect to landscaping, Mr Tomasetti presses the applicants' position that the proposal is compliant with council's controls as up to 6% is permitted as a variation and less than that is claimed. Even if Ms Laidlaw's position were preferred, he maintains that the calculated difference is negligible. Mr Tomasetti notes the applicants' agreement to conditions requiring the planting of an additional tree and measures to protect the Norfolk Island Pine. He also notes the large extent of green roof which is excluded from council's landscape calculations.
Mr Tomasetti relies on Dr Lamb's assessment of impact on views from any of the affected properties as no more than moderate and that given that the proposal complies with the relevant controls, he contends that the impact is not so unreasonable as to warrant refusal. He argues that even if split into two components or if two compliant dwellings were constructed on each lot, the impacts on views may not be any better and that the loss of the shoreline interface would still occur.
In support of his argument that there is no justification for requiring an even more skilful design of the dwelling (step 4 in Tenacity) as contended by council and opined by Ms Laidlaw, Mr Tomasetti cites the Planning Principle published in Architects Marshall v Lake Macquarie City Council [2005] NSWLEC 78 at [38]-[42]. Specifically, he submits that the Court should place little weight on Ms Laidlaw's criticism of the style of the proposed dwelling as this is an individual's opinion rather than a view shared by the design profession and there is nothing in the DCP that mandates a particular style. Again Mr Tomasetti reiterates that the proposal is fully compliant with all controls.
In summarising the applicants' case and having regard to the matters to be considered under s 79C of the EPA Act, Mr Tomasetti submits that the proposal: does not offend SEPP 71; meets the zone objectives for the E4 Environmental Living zone; as a re-subdivision of land, noting no specified maximum lot size, it complies with the minimum lot size development standard in PLEP; complies with the height control and FSR standards and objectives in PLEP and thus achieves the Desired Future Character requirement in PDCP; on the applicants' case, the landscape area complies and achieves the outcomes and controls in Part D3.11 PDCP but if deemed not to be numerically compliant the extent is de minimus; and, achieves a reasonable sharing of views and thus requiring further and more onerous modifications of a skilfully designed proposal already compliant with site specific controls is unreasonable. In short, he contends that the proposal should be approved.
Ms Irish for the council prepared detailed written submissions. She contends that the applicants have not adequately addressed the unique nature or setting of the proposed development. Ms Irish submits that while it is described as a single residence it is in fact two buildings wrapped around each other and not sited as if constrained by the side setbacks and building envelope controls applying to the individual allotments, which amongst other things, has an impact on view sharing. She maintains that the applicants have not been able to provide any examples of amalgamated lots on the foreshore. Ms Irish presses the findings of council's assessing officer as stated in the 'Summary of Recommendations' report (Tab 8, Exhibit 3) that had the building been designed as two distinct elements of built form, the amalgamation of the two lots would not be of so much concern in regards to character, but as proposed, the building is of an excessive scale, out of character and should be refused.
Specifically addressing character and contention 4, Ms Irish makes the following submissions: the opinion of the assessing officer is supported by the submissions of the resident objectors and the evidence of Ms Laidlaw; little if any weight should be given to Ms Morrish's 'bird's eye view' and 'simplistic arithmetic exercise' analysis of the width of roof forms to lot widths as it takes no account of eaves, roof forms, the planning controls applicable to each lot and nor was it ground-truthed; there is no analysis of the form of the proposed dwelling - e.g. square v modulated compared to existing character; and there is no analysis of how the height and form of the proposal achieve the outcomes in PDCP Part D.3.1 - Character as viewed from a public place nor any assessment of how the building is in keeping with the natural environment and special values of the locality. Ms Irish relies on Ms Laidlaw's evidence in which she opines that while there is no strong repetitive rhythm in the street, each property contributes something to the character of the locality and that landscaping cannot be relied upon as a means of ameliorating impact. In response to Mr Tomasetti's reliance on the Planning Principle in Architects Marshal she notes that Ms Laidlaw stated expressly that she was relying on her own opinion; Ms Irish contends that Mr Tomasetti's argument would be equally applicable to Ms Morrish and Mr Fleming.
In regards to Contention 7 and landscaped area, Ms Irish asserts that the neither the numerical control nor the qualitative outcomes of the controls are achieved. She contends that given the size of the site, meeting the 60% control should be easily achieved. Ms Irish presses Ms Laidlaw's opinion that as the outcomes are not met, particularly in respect of minimising bulk and scale, the applicants are not entitled to the 6% variation. She submits that a conservative view must be taken of the mature height of the three Banksias to be planted on the beach side of the site. Ms Irish asserts that Ms Sonter has resorted to "scratching around" to find sufficient area and has arrived at 59.7% which is still shy of the control. She also maintains that minimising the area of impervious surfaces is a deliberate attempt to achieve compliance and is unlikely to be a practical outcome.
Again Ms Irish relies on the evidence of Ms Laidlaw as opposed to Dr Lamb in respect of the impact of the proposal on views from other properties (contention 9). She contends that the proposal fails to demonstrate a reasonable sharing of views and if approved would have an adverse impact on the amenity of surrounding properties. Ms Irish notes that Dr Lamb did not refer to the broader definition of 'view' provided in PDCP in his report but confined himself to the descriptions in Tenacity and that he did accept that the gaps between the existing buildings afford views to the beach. She suggests it is surprising that Dr Lamb characterised the loss of the only area of land/water interface viewed from 4B Allen Avenue as moderate and not severe as Ms Laidlaw found.
Ms Irish also pressed contention 2 - coastal hazard - coastal risk and flood risk - in so far as the necessity of the height of the finished floor levels of all ground floor elements above existing ground level. She contends that the effects of reducing the levels, and thus reducing the overall height and bulk of the dwelling, have not been tested and should the Court be minded, an interim decision could be made in order for this to happen.
Having regard to s 79C, Ms Irish submits that: the proposal fails to adequately consider and accommodate the aims listed in clause 2 of SEPP 71 - including, but not limited to, subclause 2(1)(k) - to ensure the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area; the amalgamation of two lots into one is not subdivision for the purpose of the EPA Act and therefore the minimum lot size is not relevant; the proposal does not provide for 'low-impact residential development and will have an adverse effect on the special values of Bilgola Beach - in this way it does not meet the objectives of the E4 Environmental Living Zone; while the proposal meets the numerical height control it does not meet the objectives in cl. 4.3 PLEP by, amongst other things, ensuring a building that is consistent with the desired future character or compatible with the height and scale of surrounding development; PDCP is not a DCP where numerical controls are "deemed to satisfy" the qualitative outcomes of the development control and the applicants' reliance on numerical compliance is misplaced; the design of the proposal results in an unreasonable loss of mid and distant views from other properties and does not enable equitable sharing of views; and the landscaping fails to meet either the numerical control or the outcomes. Therefore, as a consequence, Ms Irish maintains that the application be refused.

Consideration

The starting point of my consideration must be s 79C of the EPA Act.
The proposal seeks consent for four general activities: amalgamation of two lots, demolition of existing structures across both lots, removal of most of the trees, and the construction of a part one, part two storey dwelling with basement across the combined lots. There is no issue with the proposed demolition of the existing structures.
I agree with Ms Irish that the amalgamation is not 'subdivision' as defined in s 4B of the EPA Act, however, nothing really turns on that fact as the combined lot achieves the minimum lot size for the zone, and, as stated in the Statement of Facts and Contentions, council is not necessarily concerned with the technical amalgamation of the two lots, but rather what is proposed to be built across the two lots. However, as the proposal is founded on that amalgamation, I accept the applicants' implied position that the setback and building envelope controls apply to the whole of the site and not council's implied position that somehow the setbacks and envelope of the two individual lots should apply. I was not taken to any controls in either PLEP or PDCP that prohibit the amalgamation of lots. On this basis, I find no reason why the lots should not be amalgamated.
In regards to tree removal, the only tree of any concern to council is the mature Norfolk Island Pine in the north-western corner of the site. I am satisfied that the agreed conditions of consent prepared by the parties' arborists, in consultation with the applicants' engineer, are sufficient to ensure the long term viability of this tree.

Landscaping

With respect to landscaping, I agree with the applicants' submissions that the extent of numerical non-compliance with the landscaping controls in PDCP in both Part C1.1 - Landscaping (Design criteria for residential development generally) and Part D3.11 - Landscaped area - environmentally sensitive land, is quite minor even without the variations. Having considered the landscaping plan, and with the horticultural expertise I bring to the Court, I am satisfied that the proposal meets the outcomes in Part C1.1 as the range of species, and the heights to which they are likely to grow given the physical environment into which they will be planted (particularly on the eastern/beach side), will soften the built form of the dwelling, particularly when viewed from Allen Avenue. While Ms Laidlaw opines that landscaping cannot be relied upon for screening, both the LEP and the DCP place considerable emphasis on the role of landscaping for that specific purpose.
All dwellings along Allen Avenue are capable of being seen from the public domain to greater or lesser degrees. There is no doubt that when viewed from the proposed driveway, the dwelling will be clearly visible from Allen Avenue; however given the eventual height of the hedge along the front boundary and the other plantings in the street, combined with the retained specimens in the street and the Norfolk Island Pine, when viewed obliquely, I am satisfied that the building will be sufficiently screened. The proposed species to be planted along the rear or beach-front boundary attain heights of between 300mm and 1.5m; a number of them are woody and or perennial shrubs which have rounded or mounded forms and when viewed from most positions on the beach between the dunes and the surf, these should provide a degree of lower level screening but clearly they will not screen the central portion of the two storey element. The proposed hedges along the northern and southern boundaries, and the three Banksia integrifolia (Coastal Banksia) should screen the dwelling when viewed from most positions along the beach except directly in front. In this I concur with Ms Sonter's comments summarised in [63] and [64] of this judgment.
On the basis of the landscape plans I find that the species selected or retained achieve the relevant outcomes given in [29] of this judgement and meet most of not all of the controls in Part C1.1.
Turning to Part D3.11, I am satisfied for the reasons given above that the proposed landscaping achieves the outcomes of this Part because: it achieves the desired future character of the locality as key species are retained and the additional landscaping will be of sufficient density, variety and stature to contribute to the "common thread" of the "landscaped, treed frontages.." "with dwelling houses a maximum of two storeys in any one place in a landscaped setting integrated with the landform and landscape" …(see [32]); it will not hide but will soften the bulk and scale of the dwelling; and amongst other things, soft surfaces for water infiltration are maximised. Therefore, I consider that the proposal can take advantage of the permitted 6% variation. I also agree with the applicants' submissions that the substantial area of roof top landscaping deserves some credit as it should achieve beneficial energy savings for the dwelling and soften the form of the dwelling when viewed from further up slope. In regards to Ms Laidlaw's concerns about privacy issues arising from maintenance of the roof gardens, during the proceedings Ms Sonter advised that the species are hardy and low growing and should only require maintenance every 3 months or so. In my view, this should not unduly impinge on the neighbours' privacy.
Therefore, I find that there are no landscaping issues that warrant refusal of this proposal.

Views

It is common ground that the proposed dwelling fully complies with the numerical height control of 8m in cl. 4.3(2) PLEP and Part A4.3 PDCP. It also complies with front and rear setbacks and building lines, side setbacks and building envelope controls. Conditions have been agreed which remedy the possible impacts of overlooking and privacy from the adjoining properties to the north and south.
The key issue is whether the proposed dwelling, given its design, height, scale and associated landscaping is in keeping with the existing and desired future character of the Bilgola Beach locality and whether, as a consequence, it unreasonably impacts on the views of other properties.
I note the council's submissions that the definition of 'view' in PDCP does not attempt to rank the type of view to be affected as considered in Tenacity (at [26] of that judgment) but it refers to essentially natural characteristics and features. However, the controls in Part C1.3 PDCP engage the application of the Planning Principle on view sharing published in Tenacity. The views in contention in this matter are primarily of a section of sky/sea/surf/sand currently available between the existing dwellings at 7 and 9 Allen Avenue and further framed by vegetation on those properties, in the road reserve and on other properties. The views are clearly regarded by the owners of those properties as valuable. They are not views of bushland or headlands. I also note that two nominated properties in The Serpentine and the two affected properties in Allen Avenue currently have the benefit of a large gap in the plantings of Norfolk Island Pines along Allen Avenue.
The controls in Part C1.3 PDCP (see [31]) also require a reasonable sharing of views, and 'where a view may be obstructed, built structures within [emphasis added] the setback areas are to maximise visual access through the structure e.g. by the provision of an open structure or transparent building materials'.
Dealing first with views from the two properties at 8 and 10 The Serpentine, with the benefit of observing the site and the broader landscape from these properties I concur with the parties' experts that the impact of the proposal on the central portion of the available but filtered view of breaking surf will be moderate. When the whole of the view available from these properties is considered, the overall impact is minor. I agree with Dr Lamb that building two compliant dwellings on separate lots may have a similar potential to impact on this central portion of the expansive views available from these properties. While the central portion of sand and surf will be lost, other portions may be recovered and the views of the southern end of the beach, pool and headland, as well as views to the north and of the ocean to the east will remain unaffected by this proposal.
The two most affected properties are 2A and 4B Allen Avenue, with the dwelling at 4B being more affected because of its lower elevation and location closer to the street. The filtered views of the water/ surf zone from these properties are limited to a very narrow portion of the relatively wide [measured off the survey plans to be at least 9m] but vegetated gap between the existing dwellings at 7 and 9 Allen Avenue.
I note the agreement between the parties' experts that about 50% of the view from the living room and associated terrace at 2A Allen Avenue will be retained or recaptured, albeit fragmented. The photographs in the joint report show the ridge line of the dwelling at 9 Allen Avenue blocking the distant horizon - sea/sky interface. The majority of the desirable view is of the ocean with a small and filtered vertical section through trees of the surf zone. The experts agree there is an oblique view of the southern headland available from the terrace.
The nominated viewing points at 4B Allen Avenue are from a first floor bedroom and associated small outdoor deck, through a circular window in the stairwell and from an elevated deck at the rear of the property. The views from the bedroom, in particular, and through the circular window at 4B Allen Avenue are highly constrained. The views from the elevated deck are principally of a wide expanse of ocean but do include the surf zone and part of the beach. There is no doubt that the proposal will obscure the views from the bedroom and through the circular window and will remove most of the surf zone but retain a wide view of the ocean and horizon from the deck. In applying the third step in Tenacity - that is from where the views are seen - living rooms being more important than bedrooms and service areas - and from across the whole of the property, the experts agree that there are no ocean views available from the ground floor living areas. The views in question are from a bedroom and effectively a service area. While the owners of the property state the deck was constructed to take advantage of the views from the elevated part of the property, is not a typical area of private open space accessed directly off a living room but is a relatively remotely located deck, albeit one that the owners state they frequently use.
The council presses part of the fourth step in Tenacity at [29] which states that: …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 is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.
I agree with the applicants' submission and the evidence of Dr Lamb that requiring any substantial alteration of a generally compliant building is unreasonable in the circumstances. While council suggests a radical alteration of the design to reorientate the second storey this would appear unreasonable in the circumstances where other beach front properties are designed to take advantage of the orientation of living areas to the beach. I also find that as there are no structures within the setbacks, the control requiring the use of transparent materials does not apply however I note the applicants' submissions and Ms Anwar's agreement that the proposed shutter system on the second storey element should provide a degree of transparency depending on its use. As to whether lowering the height of the building would make any material difference to the quantity or quality of the views from affected properties, again I have to agree with the applicants that the height complies with the more onerous 8m control and the height of the finished ground floor level has been determined by the coastal flooding experts. While paragraph [30] in council's Amended Statement of Facts and Contentions (in regards to Contention 4 - character) mentions "the generous floor to ceiling height of the ground level" apart from Ms Laidlaw's mention of it in the Joint Report - Town Planning (Exhibit 6) there is no further interrogation of this aspect of the proposal by any of council's experts as to whether or not reducing the height would open up more views; the emphasis has been on the length of the second floor element. Based on the photographs and montages in Exhibit 8 and from the plans, it would seem to me that, for example, reducing the height to that of the ridge line of No 11 (Ms Anwar's reference point in [51]) and perhaps increasing the setback of the second storey from No 5 would produce very marginal increases in the amount of ocean to be seen and would probably have a negligible impact on the qualitative aspects of the view.
Therefore having considered the impacts of the proposal on views, in conclusion while I consider there will be a significant impact on the views available from the dwelling at 4B Allen Avenue, (and to some extent from 2A Allen Avenue) in any event 4B by its location and elevation has very limited opportunities for ocean views; the views it currently has the benefit of are by virtue of existing wide setbacks between the current dwellings on the site. Should two complying dwellings be built on each of the current lots, it is reasonable to expect that the current 9+m setback could be reduced to between 2 and 5m [by applying council's side setback controls to each lot] and achieve a compliant height. In these circumstances I consider that requiring further modification of the proposal is not justified in the circumstances and the proposal should not be refused on the basis of impact on views.

Character

In considering whether the proposed development will have a significant adverse impact upon the visual amenity and scenic qualities of Allen Avenue and Bilgola Beach, I make the following findings.
Council's controls in Part D3.1 PDCP address character as viewed from a public place. While noting Ms Laidlaw's comments about roof forms, the planners and Ms Morrish agree that there is no particular predominant style or repetitive architectural approach in Allen Avenue. Ms Anwar's concerns about character appear to be focussed on the length of the second storey element. Notwithstanding Ms Laidlaw's criticisms of the rectilinear form of the building and the absence of eaves and other roof treatments, in regards to the controls in Part D3.1, on the evidence, in particular the detailed analysis provided by Ms Morrish, I find that the building will have a street presence but be at a 'human scale', and while it will be of a different form it incorporates all of the design elements listed in the control; however, as there is no particular design theme, there can be no particular incompatibility. While it will be larger than adjoining dwellings, in terms of bulk and scale, it is hard to move past the oft-stated compliance with all the controls. I am not satisfied that the council has established any specific grounds for requiring a more onerous response to its controls. As discussed above, I am also satisfied that the landscaping in its style and species choice will screen the visual impact of the built form, in particular from Allen Avenue. As agreed by Ms Anwar, if the proposal is approved, the Bilgola locality will remain "primarily a low density residential area with dwelling houses a maximum of two storeys in any one place in a landscaped setting" and thus achieve the desired future character. There is no issue that the building will not be of a high quality.
I do not propose to give any weight to the submissions made in regards to the applicability of the Planning Principle in Architects Marshall as architectural evidence was not sought and it is accepted that the experts were expressing their professional opinions in the context of the contentions they were addressing.
Therefore, I find no reason to refuse the proposal on the basis of harm to the character of the area and Bilgola Beach.

Section 79C

For completeness, it is necessary to address all matters to be considered in s 79C of the EPA Act.
As the proposal is located within the coastal zone, as required by cl. 7(b) SEPP 71, I have taken into account the matters for consideration in cl. 8. On the basis of my findings for each of council's contentions, I am satisfied that amongst other things, the proposal: is consistent with the aims of the Policy; is suitable for the locality; and will not significantly overshadow the foreshore area or cause any significant loss of views of the beach from public areas. The council has not pressed any likely cumulative impacts of the proposed development on the environment. Similarly, as required by cl. 5.5(2) PLEP, I have considered the matters in that clause which are essentially those in cl. 8 SEPP 71. In accordance with cl. 5.5(3) PLEP I am satisfied that the proposed development will not cause any of the adverse impacts listed in that clause.
In regards to the other clauses in PLEP relevant to the remaining contested contentions, I have had regard to the objectives of the Zone E4 - Environmental Living. While it is accepted that all development has some impact I am satisfied for the reasons provided above that the resulting impact will be low and the objectives are achieved. While the height of the proposed dwelling is slightly greater than 11 Allen Avenue and somewhat higher than 5 Allen Avenue, I find it by and large achieves the objectives of the Height of Buildings development standard in cl 4.3 PLEP.
As required by s 79C(1)(iii) and Part A1.7 PDCP I am satisfied for the reasons given in the discussion of each of the contentions that the proposal is consistent with PLEP, the desired character of the locality, and the development controls applicable to the development.
There have been many submissions from people concerned about various aspects of the proposed development, and while it will be different to other forms of residential development in the immediate vicinity it complies with council's current planning regime and I am not satisfied that there are sufficient or valid planning grounds on which to dismiss this appeal. I note that a number of submissions relate to the potential impacts on coastal erosion and other contentions since resolved and agreed by the parties. The existing dwellings at 7 and 9 Allen Avenue are built forward of the foreshore building line, as the proposed new dwelling will comply with that control and will be engineered in accordance with current standards, the potential impact on coastal processes is therefore assumed to be lessened.

Conclusions and orders

On the basis of the expert evidence and the submissions and with the benefit of inspecting the site and neighbouring properties the Orders of the Court are: 1. The appeal is upheld. 2. Development Application N0073/15 for the demolition of existing structures and construction of a new dwelling and landscaping works, including the amalgamation of two existing lots into one new lot at 7-9 Allen Avenue, Bilgola Beach is approved subject to the Conditions of Consent attached as Annexure A. 3. Exhibits 1, A, E and D are retained; all others including the A1 plans are returned.

Judy Fakes Commissioner of the Court 10496 of 2015 - Annexure A (112 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2015

At a glance

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Judgment (25 paragraphs)

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Cases Cited (2)

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