107 High Nth Sydney Pty Ltd v North Sydney Council

[2023] NSWLEC 1231

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

107 High Nth Sydney Pty Ltd v North Sydney Council [2023] NSWLEC 1231

Hearing dates:

15,16 February 2023

Date of orders:

16 May 2023

Decision date:

16 May 2023

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development application DA281/21 which seeks consent for the demolition of the existing building, excavation, and construction of a four storey residential flat building proposed at 107 High Street, North Sydney (SP3013) is approved subject to the conditions in Annexure A.

(3) The exhibits are returned, with the exception of Exhibits 2, and C.

Catchwords:

DEVELOPMENT APPLICATION – consent sought for demolition and construction of four storey residential flat building – site within Heritage Conservation Area – whether the development has adverse impacts on the conservation area – whether the built form and character are compatible with the established character – impacts on views from adjoining properties to Sydney Harbour – amenity of the proposed development – appeal upheld

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.17, 8.7

Land and Environment Court Act 1979, s 34

North Sydney Local Environmental Plan 2013, cll 2.7, 4.3, 5.4, 5.10, 6.10

State Environmental Planning Policy (Biodiversity and Conservation) 2021, ss 10.2, 10.10, 10.24

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, cll 4, 6A, 28

Cases Cited:

Arnott v City of Sydney Council [2015] NSWLEC 1052

Nisbet v Newcastle City Council [2017] NSWLEC 1480

Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Apartment Design Guide

International Council of Monuments and Sites, Burra Charter 1999

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

107 High Nth Sydney Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
C Ireland (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
McCullough Robertson Lawyers (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2022/173292

Publication restriction:

No

Judgment

1. COMMISSIONER: This appeal concerns a development application seeking consent for the demolition of the existing building, excavation, and construction of a four-storey residential flat building. The development is proposed at 107 High Street, North Sydney. The Respondent, North Sydney Council, refused the development application (DA281/21) and the Applicant appeals to the Court pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against that determination.

2. The matter was listed for conciliation on 12 September 2022 pursuant to s 34 of the Land and Environment Court Act 1979. The conciliation was terminated. The Applicant was granted leave by the Court to amend their development application on 11 October 2022, including the provision of additional information.

3. Despite the amendments to the development application, the Respondent argues that the development warrants refusal on the following grounds:

1. The development is inconsistent with the objectives of the R4 High Density Residential zone;

2. The development will result in adverse impacts on the significance of the Careening Cove Heritage Conservation Area (the HCA) and is not of a built form or character that is compatible with the established character of the HCA;

3. The development application will result in unreasonable loss of views to Sydney Harbour from adjoining properties, in particular 94 and 96 High Street;

4. That the internal amenity of the future apartments is unacceptable, in particular the lack of solar access and the sunken nature of the ground floor apartments fronting High Street;

5. The landscaping proposed in the front setback is inadequate.

The site and its context

4. The Site is located at No 107 High Street, North Sydney and is legally described as SP3013. The site has an area of 1,261.7m² and a significant fall of some 3-4m away from High Street to the rear boundary.

5. The site currently contains a two-storey residential flat building containing five units which fronts High Street, as well as a two-storey outbuilding in the south west corner of the site. The outbuilding contains garaging and an upper floor unit.

6. The site is located within a residential area comprising a range of housing typologies. Development to the north of the site on the opposite side of High Street predominantly consists of two storey inter-war dual occupancy dwellings at Nos 94, 96, 98A and 98 High Street. To the east, the site adjoins No 107A High Street which contains a two-storey dwelling with the garage having a nil setback to the street. To the south, the site adjoins Nos 4, 6, 8 and 10 Bradly Avenue, which contain two-storey interwar residential flat buildings. To the west, the site adjoins No 105 High Street which contains a two-storey residential flat building and No 3 Hipwood Street.

7. The site is located within a HCA. The statement of significance for the HCA from Part C Character Statements Section 8.3 of the North Sydney Development Control Plan 2013 (DCP 2013) is extracted below:

"The Careening Cove Conservation Area is significant:

a) as a largely consistent early 20th century residential area with an unusual and irregular pattern of street layout and irregular subdivision pattern that give the area a particular character.

b) as retaining much of the urban detail and fabric seen in gardens, fencing, street formations, use of sandstone for retaining and building bases, sandstone kerbing and natural rock faces.

c) for the amphitheatre like form around the reclaimed Milson Park and the head of the bay.

d) for the remaining waterfront industrial and recycled industrial development that gives the area much of its character.”

8. The existing building is identified in DCP 2013 as a neutral item in the HCA.

Planning framework

9. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) applies to the proposal at cl 4(1)(a)(i) and 4(1)(b). Clause 6A of SEPP 65 is in the following terms:

6A Development control plans cannot be inconsistent with Apartment Design Guide

(1) This clause applies in respect of the objectives, design criteria and design guidance set out in Parts 3 and 4 of the Apartment Design Guide for the following:

(a) visual privacy,

(b) solar and daylight access,

(c) common circulation and spaces,

(d) apartment size and layout,

(e) ceiling heights,

(f) private open space and balconies,

(g) natural ventilation,

(h) storage.

(2) If a development control plan contains provisions that specify requirements, standards or controls in relation to a matter to which this clause applies, those provisions are of no effect.

10. The SEPP 65 design quality principles and the Apartment Design Guide (ADG) have been taken into consideration in determining the application: cl 28(2) of SEPP 65. Consistent with the findings that follow, consideration of the principles does not, in my assessment, generate an inconsistency which warrants the refusal of the development application.

11. The Respondent nominates the following principles of SEPP 65 as being of particular relevance to the development:

“Principle 1: Context and neighbourhood character

Good design responds and contributes to its context. Context is the key natural and built features of an area, their relationship and the character they create when combined. It also includes social, economic, health and environmental conditions.

Responding to context involves identifying the desirable elements of an area’s existing or future character. Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood. Consideration of local context is important for all sites, including sites in established areas, those undergoing change or identified for change.

Principle 2: Built form and scale

Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

Good design also achieves an appropriate built form for a site and the building’s purpose in terms of building alignments, proportions, building type, articulation and the manipulation of building elements. Appropriate built form defines the public domain, contributes to the character of streetscapes and parks, including their views and vistas, and provides internal amenity and outlook.

…

Principle 5: Landscape

Good design recognises that together landscape and buildings operate as an integrated and sustainable system, resulting in attractive developments with good amenity. A positive image and contextual fit of well designed developments is achieved by contributing to the landscape character of the streetscape and neighbourhood.

Good landscape design enhances the development’s environmental performance by retaining positive natural features which contribute to the local context, co-ordinating water and soil management, solar access, micro-climate, tree canopy, habitat values and preserving green networks. Good landscape design optimises useability, privacy and opportunities for social interaction, equitable access, respect for neighbours’ amenity and provides for practical establishment and long term management.

Principle 6: Amenity

Good design positively influences internal and external amenity for residents and neighbours. Achieving good amenity contributes to positive living environments and resident well being.

Good amenity combines appropriate room dimensions and shapes, access to sunlight, natural ventilation, outlook, visual and acoustic privacy, storage, indoor and outdoor space, efficient layouts and service areas and ease of access for all age groups and degrees of mobility.”

12. The ADG 4A Solar and daylight access design criterion 1 states that living rooms and private open spaces of 70% of apartments in a building in the Sydney Metropolitan Area should receive a minimum of 2 hours direct sunlight between 9am and 3pm on the winter solstice. Design criterion 3 states that a maximum of 15% of apartments in a building receive no direct sunlight between 9am and 3pm at mid-winter. The development application seeks to vary this control as 30% of the apartments do not receive direct sunlight between 9am and 3pm at mid-winter.

13. The ADG provides guidance in relation to ground floor apartments at Part 4L. The objective of 4L-2 is that “the design of ground floor apartments delivers amenity and safety for residents”. The relevant design guidance is:

“Privacy and safety should be provided without obstructing casual surveillance. Design solutions may include:

• elevation of private gardens and terraces above the street level by 1-1.5m (see figure 4L.4)

• landscaping and private courtyards

• window sill heights that minimise sight lines into apartments

• integrating balustrades, safety bars or screens with the exterior design

Solar access should be maximised through:

• high ceilings and tall windows

• trees and shrubs that allow solar access in winter and shade in summer”

14. State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP B&C) continues to apply to the development application, as the site is within the mapped area: s 10.2(1) SEPP B&C. In determining the development application consideration must be given to the principles listed at s 10.10 of the SEPP B&C, with the following principles relevant to the issues in dispute between the parties:

…

(g) the number of publicly accessible vantage points for viewing Sydney Harbour should be increased.

…

15. Further, Chapter 10 ‘Sydney Harbour Catchment’ of SEPP B&C states:

10.24 Maintenance, protection and enhancement of views

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows: -

(a) development should maintain, protect and enhance views (including night views) to and from Sydney Harbour,

(b) development should minimise adverse impacts on views to and from public places, landmarks and heritage items.

(c) cumulative impact of development on views should be minimised.

16. As detailed in the judgment, I have determined that the development is appropriately responsive to these principles and that the view impacts arising from the development are not on balance sufficient to warrant the refusal of the application.

17. The site is zoned R4 High Density Residential under the provisions of North Sydney Local Environmental Plan 2013 (LEP 2013). Development for the purposes of residential flat building is permitted in the zone. The objectives of the zone, to which regard must be had in determining the development application are:

•  To provide for the housing needs of the community within a high density residential environment.

•  To provide a variety of housing types within a high density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To encourage the development of sites for high density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

•  To ensure that a reasonably high level of residential amenity is achieved and maintained.

18. In determining the development application, I have given consideration to the zone objectives. Consistent with the reasoning and findings detailed later in the judgment, I find none warrant the refusal of the development application.

19. Demolition requires development consent pursuant to cl 2.7 of LEP 2013.

20. The maximum permissible height of buildings for the site is 12m pursuant to cl 4.3 of LEP 2013. The development complies the maximum height development standard.

21. There is no applicable floor space ratio for the site.

22. The site is within a listed HCA. Clause 5.10(4) of LEP 2013 requires the consent authority, or the Court exercising the functions of the consent authority, to consider the effect of the proposed development on the heritage significance of the HCA.

23. Pursuant to cl 6.10, Earthworks, in LEP 2013 consent is required for earthworks. Before granting consent to the development, the consent authority must have regard to the matters at subcl (3) of the provision. The Respondent does not contend that the application is inconsistent with this provision. Further, in having regard to the listed matters, I have reviewed the Council Assessment Report prepared in June 2022 and its conclusion that the Council’s development engineers find the proposed earthworks acceptable subject to the imposition of conditions. Those conditions are contained in Annexure A. I am satisfied none of the listed matters warrant the refusal of the development and that the nominated conditions should be imposed.

24. DCP 2013 applies to the development. The structure of the controls in DCP 2013 is detailed at Section 1.7.3 which nominates Part C, the area character statements as having precedence over the general controls at Part B of the document.

25. The site is located within the Kirribilli Character Area. Within that character area the site is within Careening Cove Conservation Area locality. The built form of that area is described at Section 8.3.2, Part C, of DCP 2013 as follows:

“The Careening Cove Conservation Area is located around the bay forming Careening Cove and bounded by High Street, Broughton Street and Crescent Place.

The landform slopes to the Bay with a flat area of reclaimed land close to the Cove. The subdivision pattern varies with a grid of rectangular lots that are cut to suit the diagonal street pattern and topography.

The Conservation Area is characterised by two storey late Victorian terraces single and two storey Federation and Inter War dwelling houses and residential flat buildings. The area retains groups of picturesque industrial buildings with associated jetties, slipways, moorings and equipment. The Ensemble Theatre was one of the first recycled industrial buildings in Sydney.”

26. Part C, Section 8.3.4 in DCP 2013 identifies the following relevant elements as significant in the locality:

“…

Views

P5 Harbour views from Miss Gladys Carey Reserve lookout (57), High Street Lookout (58), Milson Park; views of the valley from Winslow Street (59). Views of Milson Park and Careening Cove from Hipwood and McDougall Streets and Bradly Avenue; View of Sydney Harbour from Stannards Place, Willoughby Road and Winslow Lane.

P6 Slot views between and over buildings.”

27. Further, Part C Section 8.3.6 defines the relevant characteristic built elements in the locality as:

“…

Form, massing and scale

P2 Two storey attached dwellings.

P3 Single and two storey detached dwelling houses.

P4 Reduced scale to the rear.

P5 Low, multi-storey Inter-War residential flat buildings.

Roofs

P6 Pitched, hipped and gables roofs pitched between 30 and 45 degrees with skillion roofs to rear.

P7 Parapets to flat roofed residential flat buildings.

P8 Brick and rendered chimneys.

Materials

P9 Walls: Face and rendered brick on sandstone foundations.

P10 Roofs: Slate, terracotta tile and corrugated metal sheeting at rear; flat roofs to residential flat buildings.

P11 Timber verandas and Federation and Arts and Crafts detailing.

…

Fences

P13 Low to 900mm in height.

P14 Sandstone walls; timber pickets.”

28. Uncharacteristic elements in the Careeing Cove Conservation Area locality are nominated in Section 8.3.7 as:

“P1 Over-scaled additions; dormers and skylights to front roof slopes; roof terraces carports and garages to the street; high solid fences to the street; rendering and painting of face brick; paved front gardens, loss of original detail; modern infill development and residential flat buildings.”

29. Section 13 of Part B in DCP 2013 provides development controls for Heritage and Conservation. Pursuant to Section 13.1.3 it applies to development proposed in the HCA.

30. Section 13.6 of DCP 2013 is directed to HCA. The relevant objectives of the section are:

“O1 Ensure that new development is designed to retain and complement the character and significance of the conservation area (refer to Part C of this DCP for a description of the significance of the heritage conservation area).

…

O3 Enable neutral items to be improved such that they contribute to the character of the heritage conservation area through the removal of unsympathetic and inappropriate elements, and reinstating missing details where appropriate.

O4 Encourage change that will remove uncharacteristic items or reduce the extent of their intrusion.”

31. Section 13.6.2 addresses Form, Massing and Scale of development. It firstly has the objective “to ensure new development has a compatible and complementary building form and scale to that which characterises the conservation area” and secondly to “maintain and enhance streetscape character as identified within the Area Character Statements.” The following controls are referred to by the heritage experts in their joint report:

“P1 Development should reflect the bulk, mass, scale, orientation, curtilage and setbacks of surrounding heritage and contributory items.

P2 Development should recognise and complement the predominant architectural scale and form of the area.

…

P9 New work may adopt a contemporary character, provided the development is not likely to have a detrimental impact on the characteristic built form of the area, particularly in terms of bulk, scale, height, form or materials.”

32. Section 13.6.3 addresses Roofs and has the objective “to maintain the characteristic roof profiles and roofing materials within a heritage conservation area.” The relevant development control is:

“P1 Roof form, pitch and materials are to be compatible with heritage and contributory items in the conservation area, as identified in the relevant character area statement (refer to Part C of the DCP).”

33. DCP 2013 provides specific controls for infill development in conservation areas at Section 13.6.6. The objective of the Section is “To ensure that new development is consistent in terms of materials, bulk, scale, character and setback with significant buildings in the heritage conservation area.” The heritage experts reference the following provisions in their evidence:

“P1 Infill developments in heritage conservation areas need to positively respond to the setting and special character of the area, as outlined in the relevant character area statement (refer to Part C of the DCP).

P2 Consideration be given to the NSW Heritage Office’s publication Design In Context provides guidance for infill development, copies of which are available from their website [link omitted].”

34. The heritage experts agree in the joint report that the requirements of Section 13.8 Demolition are met by the proposed development with the exception of P6(b) which states:

“P6 Despite P5 above, Council may consider the demolition of a neutral item, but only where the applicant can demonstrate:

…

(b) that any replacement building improves the contribution of the site to the area’s character in terms of form, setbacks, bulk, scale, materials and style.

…”

35. Section 13.9.4 provides specific provisions in relation to materials, colours and finishes applicable to the HCA. The objective of the Section is “to ensure that materials and finishes are consistent with the characteristic elements of the heritage item or heritage conservation areas.” The relevant provisions are:

“P4 Select materials and finishes to reflect their characteristic usage, such as stone at the building base.

…

P13 Ensure materials, finishes and colours are compatible with the characteristic built elements of the heritage conservation area as described in the relevant Area Character Statement (refer to Part C of the DCP).”

36. Section 13.9.6 provides development controls in relation to Fencing with the objective to “ensure that fences are consistent with the characteristic elements of the heritage item or heritage conservation area.” The relevant controls are:

“P1 Retain original fences and gates where they are characteristic elements of a conservation area or add to the significance of the building or place.

…

P4 The height of a new fence with a heritage conservation area is to be consistent with that identified within the relevant Area Character Statement (refer to Part C of the DCP).”

37. Development Controls applicable to residential flat buildings are contained at Part B of DCP 2013 in Section 1. It provides the following relevant controls to the issues in dispute in the proceedings:

“1.3.6 Views

Objectives

O1 To protect and enhance opportunities for vistas and views from streets and other public places.

O2 To encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP.

Provisions

P1 Development should be designed such that views from streets and other public places, as identified in the relevant area character statement (refer to Part C of the DCP), are not unreasonably obstructed.

P2 Development should be designed to maximise the sharing of views from surrounding properties and public places.

…

P4 Where a proposal is likely to adversely affect views from either public or private land, Council will give consideration to the Land and Environment Court’s Planning Principles for view sharing established in Rose Bay Marina Pty Ltd v Woollahra Municipal Council and anor [2013] NSWLEC 1046 and Tenacity Consulting v Warringah Council [2004] NSWLEC 140. [link omitted]

…

1.4.6 Setbacks

Objectives

O1 To reinforce the characteristic pattern of setbacks and building orientation within the street.

O2 To control the bulk and scale of buildings.

…

O4 To preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access.

Front

P1 The front setback must match the alignment of the primary facades of buildings on adjoining properties. Where different setbacks occur, the average of the setbacks of those primary facades is to be used.

P2 Minimum Setback requirement, side

…

R3 Medium Density zone, Residential flat building: 3m; and The building must not exceed a building height plane commencing at 3.5m above ground level (existing) from side boundaries and projected internally to the site at 450 (refer to Figure B-1.3).

…

Rear

P5 Provide rear building setbacks that match those on adjoining properties, or, if adjoining properties are not characteristic, with setbacks identified in the relevant area character statement.

…

1.4.7 Form, Massing and Scale

O1 To ensure the size of new buildings are consistent with surrounding, characteristic buildings and they are not significantly larger than characteristic buildings.

…

P2 Where applicable, the number of storeys within a building should be consistent with that identified in the relevant area character statement (refer to Part C of the DCP).

…

P7 Residential flat buildings should use a pitched roof form to reflect the prevailing roof typology or that identified in the relevant area character statement (refer to Part C of the DCP).

P8 Despite P7 above, Council may consider approval of a residential flat buildings with a flat roof, but only where:

(a) the development complies with the height requirements under P1 above; and

(b) where the top-most storey has been setback to comply with a 36 degree angle back from the top edge of the storey located immediately below (refer to Figure B-1.4).

1.4.8 Built form character

O1 To ensure that the design of new buildings reflects and reinforces, or is complementary to, the existing character of the locality.

…

1.4.10 Roofs

O1 To ensure the provision of a characteristic roof typology though the use of similar forms, shapes and materials.

P1 Buildings should incorporate a pitched roof, except where another roof form is identified in an area character statement (refer to Part C of the DCP) for the neighbourhood, or as being compatible with the characteristic roof form for the neighbourhood.

P2 Roofs should be similar in form and utilise similar materials to those identified in the relevant area character statement (refer to Part C of the DCP), or if not identified in the relevant area character statement that positively relates neighbouring buildings.

P3 Roofs should be pitched generally between 25 degrees and 36 degrees, and preferably within the lower end of this range at an angle or 27-28 degrees.

P4 Despite P3 above, Council may grant consent to a building with a roof pitch less than 25 degrees to maintain views or to correspond with a particular building design.

P5 Flat or skillion roofs may be considered, where they are provided to the rear of buildings and not seen from the primary street frontage.

P6 Use terracotta tiles, slate or corrugated iron where appropriate.

…

1.4.12 Colours and Materials

O1 To ensure new buildings reflect and reinforce the existing and desired character of a locality.

P1 Buildings should use colours, finishes and materials identified in the relevant area character statement (refer to Part C of the DCP), if provided.

…

1.4.14 Front Fences

O1 To ensure that front fences contribute to a characteristic pattern of fences.

…

P1 Front fences and side fences located between the street frontage and its respective building line are not to exceed 1m in height. Where sites have a dual street frontage, consideration may be given to higher side fences to provide privacy.

P2 Fences should be designed and constructed with materials similar to those identified in the relevant area character statement (refer to Part C of the DCP), if provided.

…

P7 Fences should incorporate setbacks from the boundary of the site and be articulated to minimise their visual impact.

P8 Must not reduce the significance of any heritage item or heritage conservation area.

P9 Soften the appearance of solid fences by:

(a) providing a continuous landscaped area of not less than 600mm wide on the street side of the fence or

(b) the use of openings, variation in colour, texture or materials to create visual interest.”

38. The development application proposes a minor variation to the development control at Part B Section 1.5.6 Landscape Area in DCP 2013. This provision requires a landscaped area of 40% of the site area. The development application proposes 39.4%.

Public submissions

39. The development application was notified to adjoining properties and the Milson Precinct between 8 and 22 October 2021. A total of 14 submissions were received. The objections principally raised concern with the height and bulk of the proposed development, its view and overshadowing impacts, as well its lack of compatibility in form and materiality with the HCA and the streetscape. Other issues raised included increased traffic congestion, removal of trees, lack of street parking, and excessive excavation.

40. Following the amendment of the development application it was renotified, resulting in three submissions.

41. At the commencement of the hearing, a number of members of the public addressed the Court onsite detailing their concerns with the development application and provided access to their properties for the Court to view their stated concerns regarding view loss. A view of the surrounding area and the HCA was also undertaken with the parties.

42. In determining the development application, I have read and considered the submissions received by the public as required by s 4.15(1)(d) of the EPA Act.

Expert Evidence

43. The Court was assisted in the proceedings by evidence from Heritage, Planning and view loss assessment experts as follows:

• Heritage: Mr Stephen Davies (Applicant) and Ms Chery Kemp (Respondent)

• Planning: Ms Sue Francis (Applicant) and Ms Annelize Kaalson (Respondent)

• View Loss: Ms Jane Maze-Riley (Applicant) and Ms Annelize Kaalson (Respondent)

44. The experts prepared joint reports that were tendered in the proceedings, Exhibits 5, 6 and 7 respectively. Each group of experts were called for oral evidence.

Will the development adversely impact the significance of the HCA?

45. The Respondent contends that the proposed development has a detrimental impact on the significance of the HCA for three main reasons:

1. Firstly, the development is inconsistent with the requirements of Section 13.6.2 of DCP 2013 in that it doesn’t reflect the bulk, mass, scale, orientation, curtilage of surrounding heritage and contributory items. In particular, the Respondent draws attention to the proposed developments compatibility with the contributory buildings at 4-14 Brady Avenue.

2. That the proposed development, at four storeys, is out of scale with and not characteristic of the HCA, being therefore non-compliant with the following controls in DCP 2013: P9 of 13.6.2; P1 of 13.6.3; P1 in 13.6.6; and P4 and 13 in 13.9.4.

3. That the proposed development has a detrimental impact on the HCA pursuant to cl 5.10(4) of LEP 2013.

46. These matters were the subject of heritage evidence. The position of each of the experts is summarised below.

47. Mr Davies starts his analysis by defining the existing character of the HCA. He concludes that the HCA is characterised by a complex mix of built form styles, periods and building heights. To the extent Careening Cove is a subset of the HCA, he concludes that it is characterised by two storey face brick interwar flat buildings. However, he argues that it is easily observed that this character does not extend to High Street and is not visible from it. He argues that High Street itself, to the extent that it forms part of the HCA is of inconsistent urban character.

48. In relation to the compatibility of the proposed building with the character of the HCA, Mr Davies argues the proposed building is well mannered in its context, utilises face brick and other materials characteristic of the HCA, is articulated into three building forms with vertical emphasis to respond to scale, and has characteristic solid to void ratios. He argues that all of these elements are congruent with the existing building forms in the HCA. However, he argues that the proposed building is also appropriately a contemporary building with soft curved building and roof forms. Mr Davies submits that it is appropriate that a contemporary building is identifiable as such. He argues, relying on the photomontages, that the building will be ‘barely visible’ above the Brady Street contributory buildings and will not be detrimental to the significance of the HCA.

49. In contrast Ms Kemp describes the existing character of the HCA, and the relevant section of High Street, as typified by 2-3 storey interwar residential flat buildings with hipped terracotta tiled roofs. On this analysis of the existing character, Ms Kemp argues that the four storey nature, the curved roof and bulk of the proposed building will be uncharacteristic and incompatible with the character of the HCA. Further, she argues that the proposed height, bulk and scale of the building does not respond positively to the setting and character of the HCA. In particular, Ms Kemp argues the curved roof form proposed to the penthouse is an incompatible element in a HCA characterised by hipped terracotta tiled roofs.

50. The planning experts, Ms Kaalsen and Ms Francis note their agreed view of the description and character of the HCA. They agree:

“10. The Careening Cove Heritage Conservation area extends from the southern side of High Street (bar 110-116 High St on the northern side of the street) to the southern side of Carabella St in Kirribilli) Inasmuch as the conservation area relates to the southern side of High Street it is Joint Report of Planning Experts 5 107 High Nth Sydney v North Sydney Council Land & Environment Court Case No. 2022/00173292 characterised by a mix of building types, size, form, materials and presentation to the street. At the street, buildings, whether dwelling houses or residential flat buildings, have minimal to zero front setbacks with a predominance of garages fronting the street. Buildings range in height as they present to the street from 3 level pitched roof residential flat buildings (183) to single storey dwelling houses where only the roof is visible from the street. They are built of brick (red and yellow and mixed), rendered and painted. They have pitched roofs (multiples degrees) tin and tile, and flat roofs.

11. Notwithstanding the conservation area, High Street, when seen as a whole contains a further mix of dwelling houses and large residential flat buildings on its northern side, elevated above the street. As a consequence, it is dominated by high sandstone retaining walls and car park entries and garages.”

(Exhibit 6, Planning Export Report)

51. Ms Kaalsen argues that the area on the low side of High Street is characterised by a built form character of two and three storey pitched roof forms. She further concludes that the proposed scale of the four storey residential flat building and its uncharacteristic bull nose edge metal roof form detailing is inconsistent with the predominant built form character of the immediate streetscape as well as the characteristic built elements of the HCA. Ms Kaalsen does not support the curved roof form, which she concludes is inconsistent with the predominant pitched tiled roofs of the HCA.

52. In contrast Ms Francis’ evidence accords with the approach of Mr Davies, namely that relevant to the subject site the HCA has two distinct visual catchments. The first from High Street and the second from Milson Park to the south. Through an analysis of the existing built form on High Street, Ms Francis concludes that ‘the building, which is under the height limit and a three-level building to the eaves height of the existing building, with a fourth in a setback flat roof form, is a form which is not only anticipated by the controls but is not inconsistent with the built forms existing in the street’ (Exhibit 6). From the second catchment Ms Francis’ assessment is that the proposed building will present as a passive-built form, behind and amongst larger and more dominant structures of the existing contributory buildings at 4-14 Brady Avenue.

Findings

53. The significance of the HCA is detailed in DCP 2013 at Section 13. The relevant section is extracted at [7].

54. Within the HCA the current building is nominated as a neutral item and the Respondent accepts the agreed position of the experts that the previous contention in relation to the demolition of the existing building is resolved.

55. On the basis of the observation of the locality and the relevant areas of the HCA on the site view, I accept and prefer the evidence of Mr Davies. Namely, that the character in proximity to the subject site is best described as mixed. I note that this conclusion is supported by the agreed evidence of the planners extracted at [49]. In my view it is not the case that the character is predominately 2-3 storey interwar residential flat buildings with hipped terracotta tiled roofs as advanced by Ms Kemp. This description is better directed to the built character of Bradly Avenue to the south of the site. Further, in my view Ms Kaalsen seeks to overly constrain the relevant area to only the southern side of High Street in describing the character of the locality. In my view such an approach is artificial. I adopt the agreed evidence of the planners as being a more representative description of the mixed character of the HCA.

56. I am satisfied on this reasoning that the proposed development is complaint with P1 and P9 of Section 13.6.2 in DCP 2013. I am satisfied that the development reflects the bulk, mass, scale, orientation and setbacks of proximate contributory items. I accept the principle in Nisbet v Newcastle City Council [2017] NSWLEC 1480 at [24] that new work should be identifiable as new or contemporary work. Further, I accept that, consistent with Article 22.2 of the Burra Charter, the proposed development adopts a contemporary character in a manner which does not have a detrimental impact on the characteristic built form of the area.

57. I am satisfied that the proposed development will provide a neutral and unobtrusive backdrop to the existing contributory buildings at 4-14 Brady Avenue. I accept Ms Francis’ evidence in this regard, which is supported by the photomontages produced by the Applicant. I am not persuaded that the proposed development will have a detrimental impact on their significance in the HCA.

58. I am satisfied the development is compliant with P4 and P13 in Section 13.9.4 of the DCP 2013 as the development proposes extensive use of face brick, void to solid ratio and proportions in the façade treatment of the building that are characteristic elements of the HCA. Further, I find that the massing of the proposed building is appropriate in scale and mass. I accept and prefer Mr Davies evidence in this regard.

59. Finally, I am not persuaded that the proposed development will have a detrimental impact on the significance of the HCA that warrants the refusal of the development application.

60. I accept the submission of Mr Ireland that the existing building is of a cluttered and disordered appearance which is to be replaced by a considered and well mannered design that will be a positive change in the streetscape of High Street and is compatible with the character of the locality.

61. It follows that I am not persuaded that the Respondent’s contention, that the development application should be refused because the proposed development does not provide a complementary and respectful building form and scale that is characteristic or in keeping with the established character of the HCA, is made out on the evidence.

Does the development result in unreasonable view loss?

62. The Applicant relies on a View Sharing Report (VSR) prepared by Urbis. That report includes view sharing assessment from 94, 96, 98 and 98A High Street. The VSR was also the subject of expert evidence.

63. In considering the impact of the proposed development on views, the experts make reference to the planning principle established in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (“Tenacity”), namely:

“[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.”

64. P4 of Section 1.3.6 DCP 2013, requires the application of the Tenacity assessment process when considering impacts on private views. Further, P2 of the same Section requires development to be designed to maximise the sharing of views.

65. SEPP B&C at s 10.24(a) requires the consent authority to consider the principle that “development should maintain, protect and enhance views (including night views) to and from Sydney Harbour”. There is no contention in the proceedings that the development has any adverse impacts on views to and from public places, landmarks and heritage items.

66. Each of the affected properties were inspected by the Court as part of the onsite inspection.

67. The assessment of impacts in the VSR can be summarised as follows:

94 High Street

• The view is obtained from the first floor living room/ study and is described as:

“The existing view is predominantly characterised be the existing dwelling on the subject site, vegetation to the south and west and the taller tower forms present in Milsons Point, North Sydney. Notwithstanding a narrow section of the upper part of the arch of the Sydney Harbour Bridge is visible above the roof form at 107 High Street this view is not a whole view that is predominately characterised by icons, scenic or highly valued compositions as defined in Tenacity. The presence of the ‘partial end-on’ view to the upper part of as isolated icon although notable is not sufficient in our opinion to warrant this view comparison as highly valued in Tenacity terms.”

(Exhibit 7, VSR)

• The VSR assesses the impact of the proposed development on the view from this property as minor.

96 High Street

• The view is obtained from the master bedroom and the living room. The views are described in the VSR separately as follows:

Master Bedroom

‘The existing view is predominately characterised by the existing dwelling on the subject site, vegetation and the taller forms present in Milsons Point, North Sydney. A narrow section of the wider view includes the upper part of the arch and upper sections of pylons of the Sydney Harbour Bridge. In other words this is not a ‘whole view’ predominately characterised by icons, scenic or highly valued features, for examples sections of land-water interface as defined in Tenacity. We note that access to parts of the Sydney Harbour Bridge is via a central part of the site, across private land, available fortuitously over a single storey built form on the site. Notwithstanding this partial view may be valued by the resident, in our opinion this view composition is not ‘iconic’ in Tenacity terms.’

Living room (from a narrow south facing window)

‘The existing view is predominately characterised by the pitched roof at the eastern end of the site, lower forms and vegetation within the east setback area of the subject site [107 High Street]. The background composition includes tower forms present in Milsons Point, vegetation, isolated towers in the City of Sydney CBD, low density development across the north facing slopes in Kirribilli and the upper part of the arch and upper sections of the pylons of the Sydney Harbour Bridge. In other words, it is not a ‘whole view’ predominantly characterised by icons, scenic or highly valued features such as sections of land water interface as defined in Tenacity. We note that access to parts of the Sydney Harbour Bridge is via a central part of the site, across private land, available fortuitously over a single storey built form on the site. Notwithstanding this partial view may be valued by the resident, in our opinion this view composition is not ‘iconic’ in Tenacity terms.’

(Exhibit 7)

• The VSR assesses the impact of the proposed development on the views from this property as moderate.

98 High Street

• The VSR assessed a view obtained from the front garden of the dwelling which contains a glimpse of the structure of the Sydney Harbour Bridge as a singular element against open sky. Given VSR’s conclusion that the quantum of view was low, no further assessment was undertaken.

98A High Street

• The VSR assessed two viewing locations for this property. Firstly, from the front garden of the dwelling and secondly from the first floor bedroom.

Front Garden

‘This is a southerly view from the paved entry to the front door of the dwelling. The view available includes areas to the east of the [existing] building on the subject site, predominately characterised by foreground and mid ground evergreen vegetation and individual isolated buildings within the Sydney CBD. The upper part of the south-easterly pylon and section of the Sydney Harbour Bridge arch is visible above the vegetation. This is not a ‘whole view’ predominately characterised by icons, scenic or highly valued features such as sections of land-water interface as defined in Tenacity.’

Master bedroom

This is a southerly view from a central location within the master bedroom. The view available includes areas to the east of the existing hipped roof on the subject site, occupied by foreground and mid-ground vegetation, residential development in Kirribilli, the north piers and end view of the arch of the Sydney Harbour Bridge and to the west tower development located in Milsons Point, North Sydney. The view also includes parts of isolated buildings within Sydney CBD. The existing view does not include whole views characterised by iconic items or features such as areas of land-water interface that would be considered as highly valued in Tenacity.

(Exhibit 7)

• The VSR assesses the impact of the proposed development on the views from this property as negligible.

68. The reasonableness of the view impacts of the proposed development was the subject of joint evidence. I note that the experts agree that the quantum of view loss for 98 High Street and 98A High Street is minor, reasonable and supportable. I accept the agreed evidence of the planners in relation to these properties.

69. The experts addressed the Respondent’s contention regarding view loss with reference to the Court’s planning principle in Tenacity and the provisions of DCP 2013. Both experts agree that the photomontages are accurate and satisfy the requirements of the Land and Environment Court Photo Montage Policy. Both experts use these photomontages as an aid to the assessment of impacts.

70. Whilst providing more detail and expounding her reasoning in greater detail, the evidence of Ms Maze-Riley and her conclusions as to the magnitude of view loss for 94 and 96 High Street mirrors that in the VSR.

71. In relation to the effect of the proposed development on the view loss experienced by 94 High Street the following additional reasoning is relevant to Ms Maze-Riley’s conclusion that the impact is minor, acceptable and reasonable:

• That the view impact is from a single room (the master bedroom) and a single window in the living room. Proportionally this is a low level of affectation when the whole dwelling is considered.

• That Ms Kaalson’s assessment of the view impact as severe is inconsistent with the reasoning of Roseth SC in Tenacity when the two impacts are compared.

• That weight should be given in assessing the acceptability of the impact to the fact of the proposed developments compliance with built form controls. To the extent that the development is inconsistent with control P2 at Section 1.4.6 Setbacks in Part B of DCP 2013, the view impact does not arise from the non-compliance.

• That to the extent that it could be argued that the proposed development is non-compliant with P8(b) of Section 1.4.7 Form Massing and Scale in Part B of DCP 2013, the impact to the views obtained from the first floor study is marginal. Further a fully compliant pitched roof design would result in greater view impacts.

72. Ms Maze-Riley applies much of the same reasoning to her assessment of the view impacts to 96 High Street with the following additional points:

• That to select or identify a particular building within a view composition, for example Barangaroo, as significant or of relative value is inconsistent with the intent of Tenacity and the decision of the Court in Arnott v City of Sydney Council [2015] NSWLEC 1052 (‘Arnott’).

• That the view loss from 96 High Street is essentially unavoidable given the view is gained across the centre of the subject site.

73. In the alternative, the view loss assessment and conclusions of Ms Kaalsen, applying both the provisions of DCP 2013 and Tenacity, can be summarised as follows:

94 High Street

• The view is available from locations in the secondary living space beyond the rear corner of the room. They are obtained from a standing position, viewing over the front boundary of the property.

• The proposed development will remove the view of the upper section of the arch of the Sydney Harbour Bridge from No 94 High Street and although the existing view may not be considered as a "whole" view, the loss of all the existing view containing the iconic Sydney Harbour Bridge arch is considered severe.

• The proposed development complies with maximum building height, setbacks and the building height plane control. However, whilst compliant with the maximum height standard, the control does not entitle an Applicant to a building envelope of 12m across the site. The development is non-compliant with control P8(b) of Section 1.4.7 of DCP 2013. This non-compliance adds to the impacts on the views afforded to 94 High Street.

• Applying the question of whether a more skilful design detailed in Arnott, Ms Kaalsen concludes:

“87…. ‘’Skilful design” and the reasonableness of a proposal, in my opinion is a development which not only responds to the numerical built form controls (building envelope) but also to the other provisions of the NSDCP 2013 including the area character statement.

88. The intent of the NSDCP 2013 built form controls in the R4 zone is to provide 3 storeys plus pitched roof form, within the 12m building height control. The Careeing Cove Heritage Conservation Area contains a predominant built form character of two and three storeys plus pitched roof forms whilst the area character statement requires pitched roof forms.

89. In my view a three storey plus pitched roof form may still impact on views however, a pitched roof form will render the application more consistent with the established character and area character statement of the NSDCP 2013 and therefore be more reasonable in terms of Tenacity. I acknowledge that it would, however, not result in the same development potential, unlike compliance with P8(b) of Section 1.4.7 of the NSDCP 2013 where a reduction in the floorplate of Level 3 may be required, however a reasonable development potential will remain whilst reducing the impact on views of neighbours in particular to No 94 High Street.”

(Exhibit 7)

96 High Street

• That the scope of the view includes the Crown Tower in Barangaroo as well as the northern pylon of the Sydney Harbour Bridge

• Views are available across a front boundary and are available from seated and standing views (master bedroom) and standing views (living area)

• The existing view from No 96 High Street is considered "whole" views including foreground development containing an iconic landmark being the Sydney Harbour Bridge including the northern pylons and the distinctive arch. In my view, "whole" view means the composition of the view providing an attractive visual context. The proposed development removes views of the pylons and most of the Sydney Harbour Bridge as well as half of the Crown tower however, it will retain the topmost section of the arch of the Harbour Bridge. The loss of most of the whole icon landmark view is considered severe.

• The proposed development complies with maximum building height, setbacks and the building height plane control. However, whilst compliant with the maximum height standard, the control does not entitle an Applicant to a building envelope of 12m across the site. Full compliance with control P8(b) of Section 1.4.7 of DCP 2013 would not alter the view impact.

• The view loss to 96 High Street is what could be reasonably anticipated by the built form controls.

Findings

Is the provision P8(b) of Section 1.4.7: in Part B Section 1 of DCP 2013 varied?

74. As detailed at [37] P8(b) of Section 1.4.7 of DCP 2013 states that the Council may approve a residential flat building with a flat roof form if the development complies with the maximum building height and allows for the top storey to comply with a line formed from a 36º angle from the top edges of the storey located immediately below.

75. The parties differ in their interpretation of this provision and its application to the proposed development. The Applicant says that the relevant ‘top edge’, from which the 36º line is projected, is the top of the parapet. The Respondent takes the ‘top edge’ as applying to the wall at the floor height. Applying the Respondents interpretation of the control, advanced by Ms Kaalsen, the development is non-compliant with the control as a portion of the upper roof fronting High Street is outside the building envelope.

76. The objective of P8(b) of Section 1.4.7 of DCP 2013 is “To ensure the size of new buildings are consistent with surrounding, characteristic buildings and they are not significantly larger than characteristic buildings.” With this objective in mind, and the context of the provision applying as an exception to P7 which mandates pitched roofs, it is my view that the intent of the control is to minimise the visibility in the public domain of any upper level flat roofs. This conclusion is supported by the diagram Figure B1-4 (reproduced at [37]).

77. On the preceding basis, I prefer the interpretation of P8(b) of Section 1.4.7 of DCP 2013 advanced by the Applicant, namely that it is measured from the top of the parapet. This is because it is this element that is acting to obscure the view line to the roof. However, to the extent that the Respondents interpretation is advanced, on merit I would vary control P8(b) of Section 1.4.7 of DCP 2013 on the basis that the proposed development is a reasonable alternative solution that achieve the objective of the provision, compatibility with surrounding characteristic buildings, as found at [61].

78. Further, I note that if the Applicant sought to comply with P7 of Section 1.4.7 of DCP 2013 and provide a pitched roof, such a design would result in a higher building mass at the centre of the site, the location across which neighbouring properties gain their view. So much is agreed by the Planning experts in their joint report.

Does the development maximise the sharing of views from surrounding properties and public places? (P2 of Section 1.3.6: Views)

79. Consistent with the public submissions, the Respondent contends that the proposed development will result in unacceptable view loss from two surrounding properties: 94 and 96 High Street.

View loss 94 High Street

80. The preceding summary of the VSR and the expert evidence provides a number of descriptions of the existing view from the first floor living room/study at 94 High Street. I note that the Court had the benefit of attending the property and making a direct observation of the view. On the basis of those observations and a close review of the VSR, I am satisfied that the view can be described as being predominantly characterised by the existing dwelling on the subject site, vegetation to the south and west and the taller tower forms present in Milsons Point, North Sydney and a partial view of the Sydney Harbour Bridge. I accept the evidence of Ms Kaalsen that this view is obtained from a number of locations within this room in a standing position.

81. I accept the conclusion of the planners that the portion of the view impacted by the proposed development includes the Sydney Harbour Bridge, which following the proposed developments construction will no longer be seen from 94 High Street.

82. However, applying the provisions of DCP 2013 I am satisfied that the proposed development has been designed to maximise sharing of views on the basis of the following:

• The adoption of a pitched roof, as sought by P8(b) of Section 1.4.7 Form Massing and Scale in Part B of DCP 2013, would result in a greater view impact.

• The proposed development has sought to site the ground floor of the building at a level that reduces the overall height of the development and reduce its impact on views from properties to the north of the site.

83. Further, as required by DCP 2013, applying the principles in Tenacity I find:

• Firstly, that the view obtained from 94 High Street does not meet the full intent of the delineation of an iconic view, despite it being clearly valued by the Resident. Further, given its partial nature I am not persuaded it would be readily recognisable as the city skyline of Sydney.

• Secondly, I note it is agreed that the views are obtained over the front boundary from a standing position.

• The third step requires an assessment of the impact. Relevantly, the view is located in the secondary living area and the development will remove the partial view of the Sydney Harbour Bridge. In my assessment the impact of the proposed development on the views is at its highest moderate.

• Applying the fourth step, the subject site and the affected property are zoned R4 High Density Residential where, in my view, the potential for redevelopment of the existing two storey building on the site is foreseeable. Given my findings at [77], the view impacts arise from a compliant building envelope. I am not persuaded by the evidence of Ms Kaalsen that a reduction of the floor plate of the building would reduce the view impact to 94 High Street, or her application of the principle in Arnott which turns on the provision of the same development potential on the site in a more skilful way. In my view, her evidence discounts the fact that the existing view of 94 High Street is obtained over the central portion of the subject site and is accordingly more vulnerable to impact when that site is redeveloped as anticipated by the development controls.

84. In summary, while the proposal unquestionably results in view loss to 94 and 96 High Street, my assessment of the views affected, and from where they are obtained, the extent of impact and the reasonableness of the proposal imposing the impact leads me to conclude the view loss arising from the development is reasonable. I find the proposed development is sited and designed to enable the sharing of views, consistent with the controls at Section 1.3.6: Views of in Part B Section 1 of DCP 2013.

View loss 96 High Street

85. In a similar manner to 94 High Street the evidence differs as to the description of the existing views available from 96 High Street. With the benefit of attending the site, I disagree with the description of the view advanced by the VSR and the evidence of Ms Maze-Riley that the view obtained from the master bedroom and the living room window is not a ‘whole view’ characterised by icons, scenic or highly valued features. The view is, in my opinion, a view of the iconic Sydney CBD skyline of which the Harbour Bridge is an element. In my assessment it is a recognisable view assemblage, in particular at night. I accept that these views are available from seated and standing views (master bedroom) and standing views (living area)

86. The impact of the development on these views is detailed in the VSR and I accept the evidence of Ms Kaalsen that the proposed development will remove the existing view of the pylons and most of the Sydney Harbour Bridge as well as half of the Crown tower but will retain the topmost section of the arch of the Sydney Harbour Bridge.

87. On the same reasoning detailed at [82] I accept that the proposed development has been designed to maximise the sharing of views as required by P2 of Section 1.3.6: Views.

Applying the principles in Tenacity to the view impacts to 96 High Street arising from the development I am satisfied that:

• Firstly, the affected view is a view that contains iconic elements of the Sydney CBD skyline of which the partial view of the Sydney Harbour Bridge is a component.

• Secondly, the views are predominately obtained from the Master Bedroom, although they are also available from a standing position from a side window in the living room looking across the front boundary of the property.

• Thirdly, assessing the view impacts for the whole of the property, in my assessment the impact of the proposed development on the views is moderate being an impact that is not extreme or reaching the threshold of severe.

• Applying the fourth step, the subject site and the affected property are zoned R4 High Density Residential where, as noted above, in my view redevelopment of the existing two storey building on the site is foreseeable. Further, the impacts arise from a compliant building envelope that appropriately occupies less than the building envelope that would arise from the maximisation of the controls.

• I am not persuaded by the evidence of Ms Kaalsen that a reduction of the floor plate of the building would reduce the view impact to 94 High Street, or her application of the principle in Arnott which turns on the provision of the same development potential on the site in a more skilful way. In my view, her evidence discounts the fact that the existing view of 94 High Street is obtained over the central portion of the subject site and is accordingly more vulnerable to impact when that site is redeveloped as anticipated by the development controls. I accept the evidence of Ms Kaalsen that the view loss to 96 High Street is consistent with an impact reasonably anticipated by the built form controls. Further, in a manner similar to 94 High Street, the existing views are obtained over the central portion of the subject site making them more vulnerable to impact when that site is redeveloped as anticipated by the development controls.

88. In summary, while the proposal unquestionably results in view loss to 96 High Street, my assessment of the views affected, and from where they are obtained, the extent of impact and the reasonableness of the proposal imposing the impact, leads me to conclude the view loss arising from the development is reasonable. I find the proposed development is sited and designed to enable the sharing of views, consistent with the controls at Section 1.3.6: Views of Part B of DCP 2013.

Is the internal amenity of the proposed apartments and the landscaping proposed acceptable?

89. It is contended by the Respondent that the proposed development will not provide an acceptable level of amenity for future residents. This contention comprises three elements: firstly, to the lack of solar access; secondly, the subterranean nature of the ground floor apartments fronting High Street; and thirdly, the lack of north facing living spaces.

90. Ms Kaalsen clarifies the concern of lack of solar access as being due to the southern orientation of the proposed apartments. She notes that 30% of apartments will not receive direct sunlight between 9am and 3pm in mid-winter. She notes that this is inconsistent with the requirements of Objective 4A-1 of the ADG and P3 of Section 1.3.7 in Part B of DCP 2013. She acknowledges that the significant views from the site are oriented away from direct sunlight, the design provides inadequate balance between these sources of amenity. Further, Ms Kaalsen acknowledges that the private open spaces are generous in size and take advantage of the views however they achieve less than 2 hours of solar access during mid-winter.

91. Ms Kaalsen details the second concern, in relation to the bedrooms fronting High Street, as being the proposed floor level in comparison to the level of High Street. She notes that the proposed bedrooms fronting High Street on the ground level will be located 850mm to 1.7m below existing street level for more than 50% of the floor area of the room. It is her assessment that this will result in these rooms having poor internal amenity, inconsistent with Objective 4L-2 of the ADG.

92. Finally, Ms Kaalsen argues that the open spaces provided are of poor amenity. She notes that the private open spaces for the courtyards for the units fronting High Street are in the form of sunken courtyards which limit the opportunity for street frontage activity and casual surveillance of the street, inconsistent with Objectives 4L-1 and 2 of the ADG. The remaining open spaces lack solar access.

93. In the alternative, Ms Francis notes that the site is located on a south facing hill with high amenity views available to the park and the water in a southerly direction. She argues it is logical for the design to seek to embrace those views. She notes that the ADG provides design guidance at 4A-1 Solar Access for such sites, indicating that the 70% criteria may not be met. Ms Francis provides the following analysis:

“52. In this case, the site is located on a south facing slope and there are significant and desired views orientated to the south. So, of the 10 proposed units 3 are orientated to the south (G.02,1 .02 and 2.02). These units are 3 bed units being 159sqm, 136sqm and 117sqm, respectively They are 76%, 54% and 30%, respectively, larger than the minimum size guidance in the ADG (4D-1(1)). They have POS of 163sqm, 255sqm and 36sqm, respectively, where only 15sqm, and 12sqm is suggested by the ADG (4E-1(1)(2)). They also receive excellent daylight from floor to ceiling glazed doors and windows.

53. So, I disagree that these units will suffer from poor amenity. Rather they will benefit from superior amenity and desirable views and outlook.”

(Exhibit 6)

94. Finally, Ms Francis notes that of the 10 proposed units, three are oriented to the south, each being large three-bedroom units (G-02: 159m², 1-02: 136m² and 2-02: 117m²). She notes that these units are internally significantly larger, being 76%, 54% and 30% respectively, than the minimum size guidance from the ADG. Ms Francis places weight on the overall size of the apartments, their open plan design, and floor to ceiling glazed doors in concluding that they would have good natural daylight, views and internal amenity. Further, Ms Francis notes that the development provides significantly larger private open spaces than the size standard in the ADG of 12m² - 15m².

95. In relation to the ground floor apartments facing High Street, Ms Francis notes that these apartments are setback 2.5m from the footpath and that this siting will improve the relationship of the building on the site to the public domain and the privacy and amenity for those rooms. She particularises the following amenity benefits that arise from the siting of these bedrooms:

• That unit G-0 achieves direct sunlight into its bedrooms from 9.30 am to 3pm. Similarly, the bedrooms of unit G-03 from 10.30am to 3pm.

• That the bedrooms on the ground floor achieve both visual and acoustic privacy due to their location below ground level.

• Improved landscaped outlook and access to a private 10sqm and 16sqm courtyard, respectively. These courtyards to sit behind a dense, approx. 1.25m deep hedge.

96. Lastly the planning experts addressed the contention from the Respondent that the development application should be refused as the landscaping in the front setback (the High Street frontage) is inadequate and does not comply with P1 of Section 1.5.6 of DCP 2013. That control requires this development to provide a minimum landscaped area of 40% of the site area. In the joint report the planning experts agree that the proposed development provides 39.4%, a shortfall of 7.2sqm.

97. In considering the proposed variation to the standard, Ms Kaalsen argues that the development is inconsistent with objective O1 of Section 1.5.6 of DCP 2013, namely:

“Objectives

O1 The specific objectives of the landscaped area controls are to:

(a) promote the character of the neighbourhood;

(b) provide useable private open space for the enjoyment of residents;

(c) provide a landscaped buffer between adjoining properties;

(d) maximise retention and absorption of surface drainage water on site;

(e) minimise obstruction to the underground flow of water;

(f) promote substantial landscaping, that includes the planting of trees that when mature will have significant canopy cover;

(g) control site density;

(h) minimise site disturbance;

(i) contributes to streetscape and amenity;

(j) allows light to penetrate between buildings;

(k) encourage the provision of space for biodiversity conservation and ecological processes; and

(l) provide a buffer between bushland areas and development.”

98. Ms Kaalsen reasons that the development is not consistent with the preceding objective as the proposed landscape strip is narrow and is further limited by the location of retaining walls within the landscaping as well as stairs, fire hydrants and other elements. She concludes that the narrow landscape strip and sunken courtyards are not considered to contributes to the streetscape amenity inconsistent with O1(l) of Section 1.5.6 of DCP 2013.

99. In the alternative Ms Francis asserts that the proposed presentation to High Street, being built form below the footpath and a hedged/screened to the public domain is a typical built form in the street. Additionally, it will provide both screened open spaces for the ground floor apartments as well as a positive streetscape presentation.

Findings

100. I accept that the proposed development application does not meet the design guidance at Objective 4A-1 of the ADG and control P3 of Section 1.3.7 in Part B of DCP 2013 as 30% of the proposed apartments will not receive direct sunlight between 9am and 3pm mid-winter. However, on an overall assessment of the merit of the application pursuant to s 4.15 of the EPA Act, neither variation is sufficient to conclude the development application warrants refusal. My reasoning follows.

101. Firstly, the design criteria of Part 4A-1 of the ADG recognises that achieving the design criteria may not be possible on some sites, and notes south facing sloping sites as one likely exception. I accept and prefer the evidence of Ms Francis that the design of the development recognises and responds to this constraint by maximising the size of the units and their private open space to capture daylight and solar access available to the units. I am satisfied that such a design approach meets the objective of the control to optimise the number of apartments receiving sunlight to habitable rooms, primary windows and private open space.

102. Secondly, in relation to the control in DCP 2013, in my assessment it is appropriate for the Court to exercise the flexibility at s 4.15(3A)(b) of the EPA Act as the development achieves the objective of reasonable access to sunlight and daylight. I note that the objective of the control is broader than the provision of direct sunlight. The design of the proposed apartments includes generous glazed elements to living spaces as well as skylights to the upper level apartments. Accordingly, I accept and prefer the evidence of Ms Francis at [94].

103. I am not persuaded by Ms Kaalsen’s concerns that the proposed ground floor apartments fronting High Street will be of poor amenity due to their recessed floor levels. This is not a case where habitable rooms are proposed at limited setback and below the street. The apartments are designed with bedrooms oriented to the street, with appropriate setbacks in which secondary courtyards occupy the zone between the building and High Street. Accordingly, I accept and prefer the evidence of Ms Francis at [95].

104. In relation to the final issue raised in relation to the variation to P1 of Section 1.5.6 Landscape Area of DCP 2013 is a minor variation and is acceptable in circumstances where the development complies with the site coverage and other built form controls in DCP 2013.

Conditions

105. At the close of the proceedings a number of conditions were in contention between the parties. The contested conditions include:

1. Whether the form and style of the front fence should be altered to have a sandstone base and a picket paling.

2. Whether the external colours and finished proposed to be approved were required to be subject to further approval prior to the Construction Certificate, or whether the requirement was more appropriately a confirmation of consistency of the external colours and finishes with the consent.

3. The appropriateness of a 100mm height allowance for a skylight to sit above the roof plane.

4. That the garbage bin storage area should be constructed as proposed in the location indicated on the approved architectural plans, rather than relocated by condition.

5. Whether it is appropriate to require a noise management plan to be prepared for the construction phase of the development, including notification and consultation with the community.

6. The requirement that upon completion of the works and prior to the issue of any Occupation Certificate, the roof of the building be certified by a registered surveyor to be no higher than RL28.75. The Applicant seeks for this condition to be reworded to require the surveyor to confirm ‘that height of the roof and lift overrun do not exceed the levels shown on the approved architectural plans referred to in Condition Al at any point’.

106. In relation to these conditions, I find as follows:

1. I note that this proposed condition arises from the evidence of Ms Kemp, and whilst not seen as necessary was considered acceptable by Mr Davies. Control P2 at Section 13.9.6 Fences in DCP 2013 seeks for front fences to be of a design that is appropriate to the style and period of the building, or characteristic fences of the conservation area. The Careening Cove statement of significance notes that part of that significance arises from the use of sandstone for retaining and building bases, sandstone kerbing and natural rock faces. I find the condition is appropriate and should be imposed.

2. Proposed condition C9 seeking for the external colours and finished to be subject to further approval prior to the issue of a Construction Certificate is inconsistent with both conditions A1 (which approves the exterior finishes plan: Drawing A600, prepared by Mayoh dated 7.10.22) and A4 which mandates compliance with this specific plan. The condition should therefore not be imposed.

3. I am satisfied that the 100mm requirement should be amended to provide for skylights to sit no higher than 200mm above the roof plane when it is in a closed position. I accept the Applicant’s submission that the 100mm height limit for skylights is unlikely to be sufficient to ensure water tightness and compliance with manufacturer's specifications and relevant standards. The condition should be modified to allow for a 200mm upstand.

4. The garbage bin storage area was not the subject of contention or evidence in the proceedings. It is unclear why the Respondent seeks for it to be in a location other than the location indicated on the approved architectural plans. On this basis I can’t be satisfied that the imposition of the condition is authorised by s 4.17(1) of the EPA Act.

5. I am satisfied that it is appropriate for the development consent to include a condition requiring the preparation of a Noise Management Plan prior to the issue of the Construction Certificate and that such a plan should include a proposed means of keeping the community informed about the progress of works. I find the condition is appropriate and should be imposed.

6. I am satisfied that the imposition of a condition requiring certification of the maximum height of the development prior to the issue of the Occupation Certificate is a condition that relates to a matter of relevance under s 4.15(1) of the EPA Act. In these proceedings it is clearly a case where the height of the proposed development has an impact on views from adjoining properties. I find the condition is appropriate and should be imposed.

Final orders

107. I am satisfied that the relevant preconditions to the grant of consent are met. As set out above in my assessment none of the contentions raised by the Respondent warrant refusal of the development application. In determining the development application, I have evaluated its merit against the provisions of s 4.15 of the EPA Act and conclude that it should be granted consent subject to the annexed conditions of consent.

108. The Court orders that:

1. The appeal is upheld

2. Development application DA281/21 which seeks consent for the demolition of the existing building, excavation, and construction of a four storey residential flat building proposed at 107 High Street, North Sydney (SP3013) is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of Exhibits 2, and C.

D Dickson

Commissioner of the Court

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Annexure A

Amendments

19 June 2023 - Pursuant to UCPR r 36.17, the Court’s order (2) and [1] are amended to correct typographical errors.

Decision last updated: 19 June 2023