Blue Label Constructions v Waverley Council

[2017] NSWLEC 1059

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blue Label Constructions v Waverley Council [2017] NSWLEC 1059
Hearing dates:	3,4 and 8 November 2016
Date of orders:	16 February 2017
Decision date:	16 February 2017
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed. 2. Development Application No. DA-225/2016 for a dual occupancy at 110 Military Road, Dover Heights is refused. 3. The exhibits, other than exhibits 2, 4, A, B and H, are returned.
Catchwords:	DEVELOPMENT APPLICATION: dual occupancy; height; floor space ratio; setbacks; overshadowing; view loss; clause 4.6 variation; public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Tenacity Consulting v Warringah [2004] NSWLEC 140. Veloshin v Randwick Council [2007] NSWLEC428
Category:	Principal judgment
Parties:	Blue Label Construction Pty Ltd (Applicant) Waverley Council (Respondent)
Representation:	Solicitors: Mr M Mantei, Planning Law Solutions (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2016/211967

Judgment

1. COMMISSIONER: This is an appeal pursuant to the provisions of s 97 of the Environmental Planning and Assessment Act 1979 against the deemed refusal of an application for alterations to an existing dwelling house to create two dual occupancy dwellings at 110 Military Road, Dover Heights (the site) by Waverley Council (the Council).

2. The appeal was subject to mandatory conciliation on 3 November, 2016, in accordance with the provisions of s 34AA of the Land and Environment Court Act 1979. As agreement was not reached during the conciliation phase, the conciliation conference was terminated pursuant to s 34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s 34AA(2)(b)(i).

The application

3. In May 2016 Development Application No. DA-225/2016 (the application) was lodged with the Council. It proposed substantial alterations to an existing dwelling house to create two dual occupancy dwellings. The works comprised:

1. alterations to the undercroft area to convert it into a basement garage to accommodate four cars;

2. additions to the rear and sides and alterations of the ground floor level to create a proposed dwelling containing an open plan kitchen, dining and living room, three bedrooms, and a balcony within the south western corner of the development;

3. conversion of the north western corner on ground floor level into a common pedestrian entry and foyer providing access to all levels of the development, including the basement, through a lift and stairwell; and

4. construction of an additional floor level, being the first floor level, over the existing dwelling to comprise a second proposed dwelling with an open plan kitchen, dining and living room, three bedrooms, and a balcony within the south-western corner of the development with a vergola above.

4. Associated works included excavation, filling, tree removal and landscaping works. Strata subdivision of the two dwellings was proposed.

Contended grounds

5. The Council contended that the application should be refused due to excessive height and floor space ratio (FSR), inadequate setbacks and adverse impacts on neighbours in terms of view loss, and to a lesser extent, overshadowing.

6. The Council also argued that the application was not in the public interest as the development significantly exceeded the relevant development standards and applicable planning controls. The request under clause 4.6 of the Waverley Local Environmental Plan 2012 (the LEP) to vary these standards was not supported as the Council considered to do so would undermine the integrity of these standards in achieving the desired future character of the Waverley Local Government Area (LGA).

7. In essence, the contended issues were the acceptability or otherwise of the height and floorspace proposed, the associated view impacts to No. 108 Military Road and, related to these issues, the acceptability of the proposed front setback and upper level rear setback.

The site and surrounds

8. The site is identified as Lot 1 in DP 4683 and is located on the southern side of Military Road at the intersection of Loombah Road and Kippara Road in Dover Heights.

9. The site is rectangular with a frontage of 15.24m to Military Road on its northern boundary and of 40.54m to Loombah Road on its western boundary with at total area of 617.8m2. It falls from the north to the south by approximately 3.3m and has a slight cross fall of 1m from east to west.

10. The site is occupied by a part one, part two storey dwelling house with vehicular access provided from Loombah Road via two separate vehicular crossings. There is a garage located in the undercroft of the dwelling house and a hardstand area in the rear yard that is capable of accommodating further off-street parking.

11. The subject site is adjoined by a part two, part three storey dwelling house to the east at 108 Military Road and a part two, part three storey dwelling house to the south at 15 Loombah Road.

12. The locality is characterised by low density residential development including dwelling houses and dual occupancy development.

Planning framework and statutory controls

13. The site is zoned R2 Low Density Residential pursuant to the LEP and the proposal is permissible with consent.

14. The key provisions of the LEP are:

• the objectives of the R2 zone

• clause 4.3 – Height of buildings

• clause 4.4 – Floor space ratio

• clause 4.4A – Exceptions to floor space ratio

• clause 4.6 – Exceptions to development standards

• the definition of ‘building line or setback’.

15. The relevant objectives of Clause 4.3 are as follows:

4.3 Height of buildings

1. The objectives of this clause are as follows:

1. to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties,

2. …

3. …

4. to ensure that buildings are compatible with the height, bulk and scale of the existing character of the locality and positively complement and contribute to the physical definition of the street network and public space.

16. The relevant objectives of Clause 4.4 are as follows:

4.4 Floor space ratio

1. The objectives of this clause are as follows:

1. …

2. to provide an appropriate correlation between maximum building heights and density controls,

3. to ensure that buildings are compatible with the bulk, scale, streetscape and existing character of the locality,

4. to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.

17. Clause 4.6 is as follows

4.6 Exceptions to development standards

1. The objectives of this clause are as follows:

1. to provide an appropriate degree of flexibility in applying certain development standards to particular development,

2. to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

2. Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

3. Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

1. that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

2. that there are sufficient environmental planning grounds to justify contravening the development standard.

4. Development consent must not be granted for development that contravenes a development standard unless:

1. the consent authority is satisfied that:

1. the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

2. the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out,

2. the concurrence of the Secretary has been obtained.

5. In deciding whether to grant concurrence, the Secretary must consider:

1. …

2. the public benefit of maintaining the development standard, and

3. …

18. As well as the provisions of the LEP, the controls relevant to the development application are those contained in the Waverley Development Control Plan 2012 Amendment No 4 (the DCP). In particular, the provisions in Part C1 relating to dwelling houses apply.

19. DCP provision C1-1.1 Height contains objectives and controls to deal with maximum building height and maximum wall height. Relevantly, objective 1.1(c) and (d) are as follows:

(c) to ensure the height and scale of development does not unreasonably impact on views enjoyed by neighbouring and nearby properties.

(d) to ensure that the height and scale of development does not result in unreasonable overshadowing of neighbouring and nearby properties.

20. The DCP states that achieving the maximum building height may not be appropriate in all cases and should not be considered as prescribed or allowable regardless of circumstances. Amenity and streetscape impacts may mean that a lower level or additional setbacks are warranted. Therefore the DCP is not intended to restrict the consent authority’s ability to require the height of buildings to be less than the maximum height as specified in the LEP.

21. The maximum height specified for flat roofed dwellings at control C1 - 1.1.1 is 7.5m however, the Council advised that this was inconsistent with the maximum height allowance of 8.5m in the LEP, which was the relevant height control for this application.

22. The setback controls are found at C1-1.2 and include the following relevant objectives:

(d) to ensure the front and rear setbacks of buildings are consistent with surrounding buildings and does not visually detract from the streetscape (sic).

(e) to ensure significant views and view corridors available from the public domain and existing properties are considered as part of the local context of any development.

23. The relevant setback controls are found at C1, part 1.2.1 Front and Rear Building Lines, namely:

1. New buildings and extensions to existing buildings are to extend no further than the predominant front and rear building lines of buildings in its vicinity (refer to Figures 2 and 3).

2. The predominant rear building line is determined by the average setbacks of the existing main buildings on adjoining properties either side of the subject site (generally 3 to 4 dwellings) and is determined separately on the ground floor and first floor level.

3. In most circumstances development at first floor level and above shall be setback from the rear building line of the ground level in order to minimise bulk and scale impacts and provide visual relief for the open space and living areas of adjacent properties (refer to Figure 3)….

4. Where it is proposed to build beyond the predominant front and/or rear building line, then greater consideration must be given to the following:

1. Compliance with applicable development standards, including Floor Space Ratio and Building Height; …

2. Visual aspects of the bulk and scale as viewed from the private open space and living areas of adjoining properties;

3. Acceptability of amenity impacts on adjacent properties with regard to solar access, and visual and acoustic privacy;

4. Views available from the subject site and adjoining properties including an assessment against the Land and Environment Court “Tenacity” Planning Principle….

24. Figures 2 and 3 of part C1 are reproduced below:

Figure 2: Example of front building line and predominant rear building line on regular shaped lots

Figure 3: Example of ground and first floor level predominant rear building lines

25. The DCP also contains specific provisions for Dual Occupancy development in Part C1 at section 1.5 including an objective to ensure that the size and bulk of new buildings and alterations and additions to dual occupancy developments do not result in unreasonable impacts on neighbouring properties.

26. At C1 - 1.10 Views, the DCP states that view sharing is an important principle to consider when developing and there are objectives and controls dealing with minimising view impacts from the public domain and from private property. Control c) states that lower density residential accommodation is to be designed and sited so as to enable sharing of views with surrounding dwellings particularly from habitable rooms and decks.

Public submissions

27. The application was notified and two objections were received raising concerns with view loss, and bulk and scale impacts.

28. During the conciliation phase, the Court heard evidence from and on behalf of the residents of the adjoining house at 108 Military Road and viewed the site from this property.

29. Issues of concern raised by these neighbours related to loss of solar access and privacy, and excessive building bulk. The main concern however was view loss, particularly arising from the FSR and height non compliances, including loss of views to the Sydney Opera House and Sydney Harbour Bridge from the master bedroom on the upper level.

30. The residents of No. 108 argued that their house had been there for many years and its views eroded with redevelopment in proximity over the years.

Impacts on 108 Military Road

31. The key issue in this appeal was the contended unreasonable viewimpacts for the adjoining property to the east, being 108 Military Road. There was also some concern, albeit of less import, associated with overshadowing of the same property. The Council argued these impacts were as a result of excess height and FSR and non compliance with the upper level rear setback.

32. 108 Military Road currently has views from several windows at both the ground and upper levels. At the upper level these include panoramic views from the master bedroom to the south extending from Rose Bay to the city including elements of Sydney Harbor at North Sydney and near the city and including the Sydney Harbour Bridge (the Harbour Bridge) and Opera House. Views from the rear of the master bedroom and a balcony off the bedroom are also to the east to the ocean. The rear views are not affected by the proposal.

33. The panoramic harbour and city views from No. 108 are across the side boundary of the appeal site and are largely as a consequence of the house on No. 108 being well setback close to the rear boundary whilst the existing dwelling on the appeal site is set further forward. These side views will be impacted by the proposal.

34. The Council argued that the proposed development should be refused due to its excessive height in that:

1. The proposal has an overall building height of 9.71m, measured to the uppermost roof ridge level which did not comply with the LEP maximum height development standard of 8.5m. Specifically there was a height breach of 1.14m or 13.4% of the control.

2. The height of the proposal failed to preserve the environmental amenity of neighbouring properties with regard to visual impact, solar access/overshadowing, and view sharing.

3. The building height of the proposal was incompatible with the height, bulk and scale of the existing character of the locality and the immediate streetscape.

4. The clause 4.6 written request seeking to vary the maximum building height standard was not well founded, did not demonstrate why the development standard was unreasonable or unnecessary in the circumstances of the case or that there were sufficient environmental planning grounds to justify contravening the standard. In this regard the proposal did not satisfy/comply with the objectives of the height of buildings development standard set out in cl.4.3(1)(a) and (d) in the LEP; or the objectives set out in section 1.1 of Part C1 of the DCP.

35. The Council also considered the floorspace to be excessive. The proposed FSR is 0.766:1 with a permissible maximum FSR of 0.5:1 under cl.4.4A of the LEP. This equated to a 167.6m² or 54% non compliance.

36. The Council argued that the proposed FSR would result in excessive building bulk and scale incompatible with the bulk, scale, streetscape and existing character of the locality. Specifically, that the bulk and scale would have adverse impacts upon the amenity of neighbouring properties in terms of visual impact, view loss and overshadowing and on the locality in terms of building scale when viewed from the public domain and the street.

37. The Council had also formed the view that the written request submitted under cl 4.6 of the LEP relating to the FSR development standard was not well founded as it did not demonstrate why the standard was unreasonable or unnecessary in the circumstances or that there were sufficient environmental planning grounds to justify contravening the standard. In particular, it was argued that the proposal did not satisfy the objectives of the FSR development standard set out in cl.4.4 (1)(b), (c) and (d) of the LEP. In particular, cl 4.4(1)(d) seeks ”to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality”. Both parties agreed that environmental amenity included views.

38. Mr McDonald, planner for the Council, argued that the proposal would result in moderate to severe impacts on iconic and water views enjoyed from No. 108. This he considered unreasonable having regard to the four step approach set out in the Court Planning Principle on view sharing arising from Tenacity Consulting vs. Warringah [2004] NSWLEC 140.

39. The four steps in Tenacity are found at para 26-29 as follows:

26. The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured.

27. The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic.

28. The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

29. The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

40. Applying the above principles to the application, Mr McDonald classified the view to the Harbour Bridge and Opera House as iconic, to the ocean, harbour and city skyline as highly valuable, and to North Sydney as valuable. He argued that the breach of the height standard was not acceptable or justified given it occurred in conjunction with a substantial breach of the FSR standard. This resulted in a built form which had direct impacts in terms of view loss and overshadowing to its neighbour. In Mr McDonald’s opinion, a reduced built form compliant with the development standards appropriately located on the site should be capable of having no or reduced amenity and view impacts.

41. Mr Perica, planner for the applicant, accepted that any reduction in height and bulk could reduce impacts but considered that it was unreasonable for the neighbour at No. 108 to retain 100% of their views thus restricting the development potential of the appeal site. He argued that concentration of development at the rear of the property would have greater impacts and that the applicant had designed the development with the floorspace to the front of the site in order to minimise impacts. Specifically, Mr Perica argued that a complying development extending beyond the existing dwelling to the rear at up to 8.5m in height would have greater view impacts.

42. However, Mr McDonald disagree on the basis that the development would have less impact if it had less floorspace and thus complied with the LEP FSR maximum. Specifically, there would be less bulk to distribute whilst a more skilful design could avoid or minimise adverse impacts. Compliance with the height standard and the DCP upper level rear setback as calculated by the Council would also assist.

43. The Council acknowledged it was reasonable to have a two storey form of development on the site but contended that any variation to core planning controls needed to be justified and achieve an environmental benefit.

44. Whilst sympathetic to the constraints the applicant faced with the location of No. 108 so far to the rear of its site, the Council argued that the Court did not have the benefit of viewing options which might show how a development could best be undertaken on the site having regard to its existing constraints. In particular, the Court was not provided with any evidence as to what a development would look like with compliant height and FSR.

45. An estimate of possible impact reduction from an increased upper level rear setback and potentially a reduced FSR was provided by the experts but this was not quantified or agreed to be an accurate depiction.

46. It was agreed by the parties that part of the existing dwelling would be removed at the rear of the lower level which would open up a view of the Harbour Bridge to the residents of No. 108 from their living room window. However, only the bridge and not the harbour would be able to be seen. Mr McDonald also noted that the Harbour Bridge could already be viewed from the upper level.

47. Mr McDonald considered that an isolated and interrupted view from the living room window was of less value than the complete view obtained from the upper level bedroom windows.

48. Mr Perica disagreed that the harbour and North Sydney views were iconic although he accepted they were valued. He contended that the proposal was improving the view of an iconic element, namely the Harbour Bridge, whilst losing some valued views.

49. Both experts agreed that the view impacts from the lower level of the dwelling were not at issue and in fact there would be an improved view from the living room of No. 108.

50. The applicant was critical that the Council did not undertake a view assessment overall but was focused on a window by window assessment with an emphasis on the view from the upper level bedroom.

51. Mr McDonald disagreed stating the concern remained the impact on the main window and outlook of the master bedroom on the upper level which had panoramic views which would be impacted. He also noted that the DCP specifies consideration of views from habitable rooms not just living rooms so the views from the bedroom were just as important.

52. In submissions, Mr Mantei for the applicant argued that Tenacity steps two and three clearly note that views across sites are more difficult to protect and expectations to retain side views are often unrealistic. He focused on the third step of Tenacity, being the need to assess the extent of the impacts of the whole of the property not just for the view that is affected. He noted that Tenacity also states the impact on views from living rooms is more significant than from bedrooms and in this regard the applicant would be improving the views from the living area of No. 108 albeit impacting on its views from a bedroom. Furthermore, the residents would still have extensive views from their master bedroom including to the ocean.

53. The Council took the Court to Veloshin v Randwick Council [2007] NSWLEC428 which at para 32 states as follows:

32. Because of the frequency with which height, bulk and character are matters in contention, it is useful to establish planning principles to guide how they may be assessed.

Planning principle: assessment of height and bulk

The appropriateness of a proposal’s height and bulk is most usefully assessed against planning controls related to these attributes, such as maximum height, floor space ratio, site coverage and setbacks. The questions to be asked are: Are the impacts consistent with impacts that may be reasonably expected under the controls? (For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified).

How does the proposal’s height and bulk relate to the height and bulk desired under the relevant controls? …

54. The Council argued that, whilst it was known that the application, which was non-complying, had impacts, the difference between the application and a complying proposal had not been documented, quantified or provided in evidence. Whilst, as previously indicated, the experts attempted to assist the Court by depicting an estimated 8.5m maximum overall building height and a 7.5m wall height as required by the DCP superimposed over photo montages of the development as viewed from No. 108, the Council argued that this depiction could not substitute for a properly modelled and assessed proposal.

55. Mr Perica suggested the excess FSR included the basement and was otherwise equally located in each dwelling within the dual occupancy. He argued that there would be no impact on the views of the city skyline arising from the proposal and No. 108 would continue to have extensive views.

56. Mr McDonald argued that it was the relative value of what was being lost in terms of quality rather than quantity and that was rare to have a panoramic view from Rose Bay to the city skyline including the Opera House and the Harbour Bridge. Mr Perica argued that iconic elements were being retained or enhanced even if some valuable elements were being lost.

57. It was agreed that it was the extent and setback of the first floor to the rear of the development that caused the view impact concern. The Council attributed this to the amount of floorspace proposed noting there was 167m² in excess of the LEP maximum permissible. The Council did not consider this to be inconsequential. Mr McDonald advised the Court that total FSR compliance was not necessarily required as long as the LEP and DCP objectives were met.

58. Mr Perica was concerned that the further north the development was moved, the less view it would have. However Mr McDonald noted that currently there was no first floor view from the appeal site and he considered that any future first floor would have outstanding views to harbour vistas. He did not accept that moving the upper level further north would adversely impact the views achieved from the appeal site.

59. In summary, Mr McDonald was of the opinion that the view impact from the master bedroom of No. 108 was severe and was a direct result of the extent of non compliance with the FSR and height controls. Mere non compliance was not the issue, view impact was. Further, that Mr Perica did not have knowledge of what views a 2 storey dwelling on the appeal site would have or what impacts a complying development would have as there was no evidence put forward on either of these matters.

60. Whilst Mr Perica agreed that the view from the upper level bedroom was a valuable view, in his opinion the overall impact on the views from No. 108 was moderate and reasonable when considering all the views from the master bedroom and from all windows of No. 108. Specifically, the reduction in the views from the master bedroom would be offset by the improved views from the lower level living room to the Harbour Bridge, and should not result in the refusal of the application. In his opinion, view sharing did not mean view maintenance as the Council was trying to impose.

Setback Compliance

61. Whilst the parties agreed that the development did not comply with the principal LEP controls relating to building height and FSR, there was disagreement as to whether it complied with the front and rear DCP setback controls.

62. The Council argued that the DCP at Figure 3 required the upper level at the rear to have a meaningful setback which had not occurred. The upper level was only setback 1.4m setback from the ground level with a balcony within this setback area. Although the Council did not object to the ground level rear setback, an increased upper level setback to at least 3m was sought on the basis that it would assist with minimising adverse view impacts on No. 108.

63. The DCP states that the rear building line is to be determined by the average setbacks of the existing main buildings on adjoining properties either side of the subject site and is determined separately on the ground and first floors with increased setback on the upper level as shown in Figure 3 of the DCP.

64. Mr Perica argued that the DCP allowed a close setback to the rear boundary than was proposed which would have greater impacts particularly in terms of the views from the lower level living room window. This was if the minimal rear setback of No. 108 as an adjacent dwelling was utilised as the DCP envisaged.

65. Both experts agreed that it was not appropriate to adopt the rear setback of No. 108 which was extreme, being very close to the rear boundary and anomolous. However, Mr Perica argued that some consideration should be given to the fact that the lack of any substantial rear setback to No. 108 constrained the site.

66. Mr MacDonald accepted that having the lower floor closer to the rear would start to impact views from the living room window and the existing rear boundary setback at the lower level had been increased by the applicant to reduce these impacts. However, he argued that the building should not be closer to the rear boundary than the existing dwelling and a further setback at the upper level was warranted.

67. The applicant’s evidence was that the lower level rear setback had been increased from what was existing, opening up views at this level, and that any greater upper level setback would overly and unreasonably constrain the ability to develop the site.

68. Both experts agreed that the location of the dwelling on No. 108 was a constraining factor in terms of designing an appropriate development on the appeal site. Mr Perica argued that averaging the rear setbacks of 106 and 108 Military Road to apply to the appeal site at No. 110 was not an unreasonable approach.

69. Mr Perica also noted that No. 108 had four windows overlooking the site which made development overly constraining and that the reason the DCP required similar setbacks for adjoining dwellings was to avoid this situation arguing the extreme variation of No. 108 to prevailing front and rear setbacks with it’s close proximity to the rear boundary meant all views over the adjoining appeal site would be affected by any redevelopment of it.

70. The Council considered that the proposed development also had an inadequate front setback in that:

1. The front setback was inconsistent with the predominant front building line determined by the three adjacent buildings to the east of the site at 104, 106 and 108 Military Road as the proposed development was notably forward of the front setbacks of these adjacent buildings. In this regard, the proposal would cause discernible streetscape impacts.

2. The front setback reduced the ability to provide sufficient open space and landscaped area in the front setback area that would positively contribute to the streetscape and did not satisfy/comply with objectives of the DCP.

71. The experts agreed that there was no predominant front setback as referenced by the DCP. Mr MacDonald’s evidence was that only the immediately adjacent dwellings should be considered to determine an appropriate setback. This was between 4.6m and 7m depending on whether the anomolous front setback of No. 108 was included. Mr Perica sought to consider the whole of the block in which the site was situated making the 4m proposed front setback appropriate.

72. Mr Perica also argued that this was a corner site and consideration should be given beyond just the immediately adjacent dwellings in the same street block of Military Road.

73. In submissions, Mr Mantei argued that the unique location of No. 108 could not be ignored as its setbacks caused unreasonable constraints to the development potential of the appeal site in that any development of the appeal site must impact the views from No. 108. He stated that it was unreasonable for the Council to rely on the front setback of No. 108 to argue an increased front setback if the reduced rear setback of No. 108 could not similarly be used to argue a reduced rear setback for the appeal site. He also noted that the DCP wording was “in most circumstances” and that this was an exception to those circumstance given the anomaly of the location of the dwelling on No. 108 effectively been located in the backyard.

Overshadowing

74. In terms of the only other amenity impacts raised by the Council, namely overshadowing of the rear yard of No. 108, the experts agreed that, if the development was lower, the amount of overshadowing would be reduced and that a compliant development in the rear yard could cause additional overshadowing but there was no evidence on this.

75. In evidence, the Council agreed that the extent of overshadowing was not so significant as to warrant refusal but did believe that there was additional impact due to the non compliance with height and floor space which was avoidable. Further that, as a compliant scheme had not been provided to the Court, it was not possible to determine what overshadowing impacts would occur from such a development.

76. Mr Mantei noted that the DCP does not require prevention of overshadowing impacts but allows assessment of overshadowing on its merits.

Clause 4.6 variation to development standards

77. The parties agreed that consent could only be granted to the development once the Court had considered a written request from the applicant seeking to justify the contravention of the LEP development standards. This would need to demonstrate that compliance with the standards was unreasonable or unnecessary and that there were sufficient environmental planning grounds to justify contravening the standards.

78. Furthermore, the Court must also be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and of the zone in which the development is proposed.

79. The onus is therefore on the applicant to meet the tests of cl 4.6 in seeking excess height and FSR by demonstrating that the breaches of the two development standards are justified.

80. The justification for variation to the standards contained in the applicant’s cl 4.6 request can be summarised as follows:

1. The height non compliance is largely as a result of the slope of the site and is confined to only a portion of the site. It does not facilitate any additional floorspace and, of itself, this additional height does not cause any adverse impacts on views.

2. The bulk and scale of the development is consistent and compatible with development in the area and in some instances is less bulky in its presentation to the street or lower than its neighbours or other development in the vicinity.

3. The bulk and scale proposed in a corner location helps mitigate the dominance of roads and bitumen.

4. The site is on a corner whereby impacts can be minimised and the development has been sited to minimise adverse impacts. Further there are no adverse visual impacts when viewed from the public domain or sensitive locations.

5. The height, location and siting of No. 108 adjoining constrains the appeal site and flexibility in controls is warranted to respond to this.

6. A better outcome is achieved for the development by the floorspace and height proposed in terms of maximising views/outlook, ventilation, solar access and it would also provide additional alternate accommodation in the area.

7. A development compliant with all controls for the site would have greater impacts in terms of view loss, overshadowing and privacy. In contrast the amenity impacts of the proposal are reasonably preserved and design features are incorporated to minimise perceived bulk.

8. The LEP allows FSR’s in a range up to 1.0:1 in the area depending on the lot size. The proposed FSR falls within this range.

9. The Council has regularly allowed excess FSR and height in the area.

81. The Council did not raise a concern with the non compliances not meeting the objectives of the zone only with not meeting the objectives of the standards.

82. Specifically, for both the height and the floorspace standard, the key objective is to establish limitations on the overall scale of development to preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.

83. Both objectives of both standards therefore refer to preservation of environmental amenity of neighbouring properties. 108 Military Road is a neighbouring property which will experience an agreed impact as a result of both the height and the FSR of the proposed development, although the experts disagreed on the severity or beneficiality of that impact or the degree to which the impacts were caused by the non compliances if at all.

84. The Council argued that the Court would have great difficulty in concluding that the application met the objectives of the two standards because the overall scale and height did not preserve the environmental amenity of the neighbouring property. In particular, the Council argued that impacts were severe, in terms of the view loss from windows in the master bedroom of No. 108. It would therefore not be in the public interest to approve the application.

85. The applicant argued the view would be improved from the living room window of No. 108 by the removal of an existing lower storey rear element which improved the view of the Harbour Bridge from this window. Therefore the view impacts to No. 108 overall were not severe.

86. The Council argued that, simply put, a complying development with an appropriate skilful design as required by Tenacity would ameliorate or reduce the adverse impacts on the views from 108 Military Road and that the unreasonable and unnecessary justification had not been met by the applicant.

87. The applicant provided examples of where the Council had approved development with non compliant height and/or FSR in the vicinity of the site which must cause some impact on views.

88. Mr McDonald accepted that FSR exceedences were not uncommon in the Waverley LGA however, argued that the Court could not know the nature of or background to these developments which may have informed the assessment process. What was agreed was that lowering the height per se may not have any material impact on view however, increasing the upper level rear setback would. In Mr McDonald’s view, so would reducing the overall floorspace.

81. The experts also agreed that, if the proposal were lower, there would be less overshadowing of No. 108. However it was agreed that this overshadowing was not significant being primarily only to a portion of private open space. It was not clear the degree to which the height non compliance was causing the overshadowing.

82. The applicant offered that, if the application as submitted was not acceptable to the Court, it could be amended in accordance with a condition sought by the Council on any approval. That condition requires the design of the development to be amended as follows:

1. The front setback of the building is to be increased to a minimum of 6 metres. This is to occur without any other movement of the footprint of the building, i.e. there is to be no reduction in the rear or side boundary setbacks.

2. The rear setback of the upper level dwelling is to be increased by a minimum of 3 metres, inclusive of the balcony and the roof of the balcony.

91. The Council objected to this course of action as the Council would still wish to see the amended design, have it reviewed by experts, and see the modelling and montages in terms of view impacts before accepting the revised proposal.

Findings

92. In order to grant consent to this application, which seeks exceedences to both the height and FSR standards of the LEP, the requirements under clause 4.6 of the LEP must be met including that the Court is satisfied that the request seeking to justify the contravention of the development standards demonstrates that there are sufficient environmental planning grounds to justify contravention.

93. Specifically, I need to be satisfied that the non compliances with height and FSR are justified and will be in the public interest because they will result in a development consistent with the objectives of each particular standard and of the zone in which the development is proposed; specifically that it will preserve the environmental amenity of neighbouring properties and minimise the adverse impacts on the amenity of the locality.

94. Based on the evidence presented to me, I cannot come to that conclusion and therefore I cannot consent to the application. If the size (floorspace) and height proposed does not preserve the environmental amenity of the neighbouring property, the development fails the cl 4.6 test.

95. The parties agree that the development has impacts on the neighbouring property at 108 Military Road and the applicant could not demonstrate to the Court that these impacts were not as a result of the non compliances or exacerbated by them.

96. Whether the view loss to No.108 is severe or only moderate, and even if the overshadowing is not substantial, I am not satisfied that a compliant development would not reduce or remove these impacts albeit I accept some impacts could result from a 2 storey dwelling on the appeal site and that it is not unreasonable for the applicant to seek a 2 storey form. Why that requires excess floorspace, as distinct from excess height to best locate the floorspace, is not evident and therefore can not be supported.

97. The applicant argued the removal of a lower storey rear element would improve the view of the Harbour Bridge from the living room window of No. 108. I accept this as did the Council. However, the upper level views would be impacted by the lack of an increased upper level setback for the floorspace proposed. The only foreseeable way of avoiding this without further impacting height or setbacks would be to reduce the amount of floorspace to be, if not compliant (as offered by the Council), at least more compliant until reasonable view sharing was achieved.

98. Even if I was satisfied in terms of meeting the objectives of the standards, I need to be satisfied that the applicant’s cl 4.6 written request adequately demonstrates that compliance with the relevant standards is unreasonable or unnecessary in the circumstances. I am not satisfied that anything in the written request justifies that the FSR control is unreasonable in this instance albeit I may be satisfied that compliant floorspace on this site might be concentrated so as to mimimse view impacts such that a height breach or reduced front setback may be warranted.

99. I therefore agree with the Council that the excess floorspace, which results in a 54% non compliance with the standard and contributes to excess height, has not be justified and indicates overdevelopment of the site with consequential adverse amenity impacts in particular in terms of view loss to the neighbouring property at 108 Military Road.

100. I accept that the applicant has endeavoured to minimise view impacts in terms of locating the floorspace in the forward portion of the site rather than at the rear. However I cannot accept that a compliant building in terms of FSR with less floorspace concentrated as proposed at the front of the site but with a greater upper level rear setback will not achieve a better planning outcome and have less adverse impacts.

101. Whilst views across side boundaries ca not always be preserved, I am not convinced that a more skilful design with compliant floorspace could not achieve a form of dual occupancy development which did not have the adverse upper level view impacts of this application.

102. It is the case that the view impacts are largely as a result of the location of the dwelling on No. 108 to the rear of its site. As I have indicated this may provide some argument to exceed the height limit by removing upper level floorspace from the rear of the site to protect views from No. 108 and locating it in a confined central location. However, this does not provide any justification for the excess floorspace sought.

103. Mr Mantei argued that the views across the site from No. 108 constrain the applicant’s ability to develop a rear dual occupancy as may be typical in the area. I agree. It is why I accept that there may be some justification for the front setback sought in attempting to minimise adverse impacts at the rear of the site on No. 108. I also accept the applicant’s argument that, as a corner site, some variation to the DCP front setback control could be warranted particularly given the circumstances of the anomalous location of the adjoining dwelling on No. 108. Were front setback DCP non compliance the only issue, I would not have considered it a sufficient ground for refusal. I also note that the experts agree that the rear setback at the lower level is appropriate and any reduced rear setback would likely have adverse impacts for No. 108. This further provides some justification for a reduced front setback. However, that does not justify, and if fact acts against, justification for excess floorspace on this site.

104. I note the Council was not seeking less than the maximum FSR or height and even indicated some breach to both could be considered where impacts were acceptable, albeit the DCP states that the maximums may not in themselves be achieved. However, it must be the case that, if there is less floorspace to distribute, the ability to distribute it to minimise impacts must be greater.

105. The applicant offered to further setback the upper level at the rear to reduce view impacts and asked the Court to adopt an amber light approach should the Court not be prepared to approve the application in its current form. However, there was inadequate information before the Court to determine that the increased setback offered would achieve acceptable view impacts or what it would mean in terms of FSR or height compliance.

106. Whilst view impacts must be considered as a whole, including potential beneficial impacts from the development associated with improving the views to the Harbour Bridge from the living room window of No. 108, I agree with the Council that the living room view is relatively constrained and is unlikely to offer as much amenity to the residents of No. 108 as the panoramic views from the master bedroom, including of the harbour itself.

107. Mr Perica also accepted that the harbour itself would still not be visible from the living room window as the proposal only opened up views of the bridge structure.

108. The enhancement of the view from the living room window does not therefore adequately offset the impacts on views from the upper level master bedroom. This is notwithstanding that views from living room are usually given greater weight than views from bedrooms.

109. In coming to this decision, I do not conclude that all of the views of No. 108 should reasonably be preserved in developing the appeal site. I also accept that a compliant dual occupancy in terms of FSR in particular would likely impact No. 108 given the location of the dwelling on No. 108 relative to the views it has. As I have indicated, if non-compliance with the height control arose as a result of the location of compliant floorspace to minimise impacts then that may well be a reasonable application of cl 4.6. That is not the case with this application where breaches to both FSR and height are proposed.

110. In summary, the applicant has not adequately demonstrated that compliance with the core controls of FSR and height is unreasonable or unnecessary nor is there demonstration of sufficient environmental planning grounds to justify the contraventions sought.

111. Mr Perica may be correct that a compliant development would have a greater impact. However, in the absence of such a proposal, no weight can be given to this assertion and such a proposal needs to be considered and assessed on its merits including view and overshadowing impacts. As required by Veloshin, to demonstrate that the proposed non compliant application is a better alternative than a compliant one, details of the compliant one need to be provided, but were not.

112. Where development does not comply with core standards of height and FSR and results in adverse view impacts for a neighbour, notwithstanding the unique location of the neighbouring dwelling, there must be substantial justification for those non compliances. That substantiation has not been provided to my satisfaction

113. In coming to my decision, I accept that No. 108 would still retain extensive views to the rear and some panoramic views across the site. However, the valued harbour elements are adversely impacted. A skilful redesign of the development with compliant (ie less) floorspace should in my view result in reduced impacts albeit I accept some view impact would likely be inevitable. The offer by the applicant to increase the upper level setback, without jeopardising a dual occupancy outcome, suggests this is the case.

114. As the application fails the cl 4.6 test it cannot be granted consent by this Court. It is therefore not necessary for me to deal in any detail with the other issues raised in the appeal. However, I did conclude that the front setback was not determinative in this matter nor was the extent of overshadowing of the rear yard of No. 108. The application fails on the reasonableness of the adverse view impacts from a development non compliant with two core controls of bulk and scale, namely height and FSR, caused by excess floorspace.

Orders   

115. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application No. DA-225/2016 for a dual occupancy at 110 Military Road, Dover Heights is refused.

3. The exhibits, other than exhibits 2, 4, A, B and H, are returned.

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Jenny Smithson

Commissioner of the Court

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Decision last updated: 03 May 2018