Cachia v Manly Council

[2009] NSWLEC 1035

Land and Environment Court

of New South Wales

CITATION:	Cachia v Manly Council [2009] NSWLEC 1035
PARTIES:	APPLICANT Catherine Cachia R$ESPONDENT Manly Council
FILE NUMBER(S):	10908 of 2008
CORAM:	Moore C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Views
LEGISLATION CITED:	Manly Local Environmental Plan 1988
CASES CITED:	Tenacity Consulting v Warringah [2004] NSWLEC 140 Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	5 and 6 February 2009
DATE OF JUDGMENT:	11 February 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr A Pickles, barrister RESPONDENT Ms C Schofield, solicitor Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

11 February 2009

10908 of 2008 Catherine Cachia v Manly Council

JUDGMENT

1 COMMISSIONER: Wanganella and Seaview Streets are streets running north/south along the ridge at Balgowlah. Seaview Street, the more eastern of the two streets, relevantly to these proceedings, is somewhat lower than Wanganella Street but not significantly so. From the eastern side of the Seaview Street, however, the area slopes away so that houses on the western side of Seaview Street can, and generally appear to, obtain significant views of the Manly peninsular, of North Head and buildings erected on parts of it (including the former St Patrick's complex), and, to varying or greater extents, views of Manly Cove.

2 To the extent that they have views, the houses on Wanganella Street enjoy those views across the Manly peninsular and incorporate some of the elements described above. The views that these houses have are either by view corridors between properties on Seaview Street or over properties to the east on Seaview Street. This may occur, as in the case in the present proceedings, when the ridgeline of a Seaview Street property is somewhat lower than the upper levels of the properties to the west on Wanganella Street.

3 Upon 11 Seaview Street is, at present, located a modest single-storey brick dwelling. An application has been made to demolish the building and replace it with a two-storey dwelling. The council and the applicant are in dispute over a range of matters. These, primarily, are:

• the impact of the proposal on views from two properties on Wanganella Street - being the dwelling to the immediate west and that to the south-west;
• the presentation of the proposal in the streetscape of Seaview Street;
• compliance of the proposal with the rear setback requirements of the Manly DCP; and
• the failure of the proposals to comply with a number of numerical controls elsewhere in the DCP.

4 After the site inspection and hearing evidence from a number of the objectors, including inspections from the upper level of the property immediately to the west of the site, the matter returned to Court.

5 After the tendering of the relevant documents, I commenced to hear oral evidence from Mr Boston, a town planner engaged by the applicant; and Mr Layman, a town planner engaged by the council. During the course of this evidence, it appeared to me that the determinative issue where there was never likely to be any agreement between the parties concerned the extent of the impact which might be permitted on views from the property on Wanganella Street immediately to the west owned by Mr and Mrs Stuart. The extent of this impact will be determined by the location of the northern wall of the first floor of the dwelling proposed for the site and how far that northern wall is set back from the northern boundary of the site.

6 In this context, I note, initially, that the DCP requires a first-floor setback from a side boundary of 2.4 m.

7 After the evidence from the town planners had been taken on this point (and they had had joint discussions in an endeavour to resolve this issue), the applicant ought and was granted leave to amend the original proposal before the Court to increase the setback of the first floor from the northern boundary. The consequence of this amendment is that the applicant now proposes that the first floor setback of over 6 m from the northern boundary whilst the council adopts the position that the appropriate setback to give effect to what the council considers is the necessary and required view sharing with the property to the rear should be ~ 9 m.

8 In addition, on the second day of the hearing, I heard evidence from Ms Kermond, a resident of Wanganella Street whose views of the ocean are primarily diagonally across the corner of the Stuart property thence across the site and, at least partially, across 13 Seaview Street (the property immediately to the north of the site). These views are enjoyed from the windows of a sunroom in the north-eastern corner of the upper level of her dwelling. She objects to the proposal on the basis of its impact on her views.

9 Although these views are across a side boundary, as will be discussed later in more detail, the council's position is that its proposed northern setback line, together with its proposal that the requirement of the DCP for an 8 m setback from the rear boundary should be enforced, would mean that there would be a significant amelioration of the impact on (but not total retention of) the views from this property.

10 The council raises a number of elements in the Manly Local Environmental Plan 1988 and the Manly Development Control Plan for the Residential Zone 2007 as the relevant planning controls requiring my consideration in assessing this proposal.

11 The first, Ms Schofield, solicitor for the council, submits is the relevant general objective of the LEP. This states, in cl 3(1)(e), that:

to increase the availability and variety of dwellings to enable population growth without having adverse effects on the character and amenity of the Municipality

12 As I indicated when she raised this matter, this objective relates to the character and amenity of the Municipality as a whole and I am satisfied that the erection of this single dwelling, even if approved in the form presently proposed, could not have any adverse effect on either the character or the amenity of the whole Municipality. I do not propose to consider this objective further.

13 Ms Schofield then relied on a number of the zone objectives for Zone No 2 Residential Zone, the zone where the site is located. The desired objectives upon which reliance is placed are:

c) to allow a variety of housing types while maintaining the existing character of residential areas throughout the Municipality,
d) to ensure that building form, including alterations and additions, does not degrade the amenity of surrounding residents or the existing quality of the environment,
e) to improve the quality of the residential areas by encouraging landscaping and permitting greater flexibility of design in both new development and renovations,

14 Subject to the satisfaction of the provisions of the DCP set out below, I do not consider that the question of view loss raises any general issues, particularly relating to objective (d), that go beyond such satisfaction. These objectives may give rise to other considerations which are not dealt with by this decision but which remain in contention by the council – at least until the council has considered the revised plans which will necessarily follow from this decision.

15 Finally, the council submits that the provisions of Part 4.3 Maintenance of Views of its DCP provided the basis for a detailed assessment of the view impacts of the proposal and that a consideration on that basis should lead to a rejection of the applicant's proposed setback from the northern boundary at the first-floor level.

16 The relevant provisions of Part 4.3 of the DCP are in the following terms:

4.3 Maintenance of Views

Objectives

4.3.1 The objectives for the maintenance of views are:

a) To maintain continued access to existing views to the city, harbour, ocean, bushland, open space and recognised landmarks or buildings from both private property and public places (including roads and footpaths);
b) To minimise loss of views from adjoining or nearby properties and public places, whilst recognising development may take place in accordance with the other provisions of this Plan; and
c) To maintain and share views with existing and future Manly residents.


Controls

4.3.2 The following controls apply to the maintenance of views:

a) The design of any development is to minimise the loss of views from neighbouring and nearby dwellings and from public spaces.
b) Views between and over buildings are to be maximised and variations to side boundary setbacks, including zero setback will not be considered if they contribute to loss of primary views from living areas.
c) Templates may be required to indicate the height, bulk and positioning of the proposed development to assist in determining that view sharing is maximised and loss of views is minimised. The templates are to remain in place until the application is determined. A registered surveyor shall certify the height and positioning of the templates.

Figure 13. View loss assessment diagram is omitted from this decision.

The DCP then incorporates a note in the following terms.

Note: The assessment to determine the extent of, and impact on, views shall be made at eye height in a standing position (eye height is 1.6m above floor level) from within the main living areas (and associated terraces/balconies) of the proposed and existing, adjacent and nearby developments, as well as public spaces (refer to Figure 13). The ultimate assessment of views and view loss shall be in accordance the following Planning Principles established by the NSW Land and Environment Court, illustrated in Figure 14 below.

17 A text box, noted as Figure 14. Land and Environment Court Planning Principles – View Assessment then appears in the DCP. It sets out the planning principles published by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140 at paras (26 to (29). These are reproduced in the DCP in the following terms

Land and Environment Court Planning Principles

VIEW ASSESSMENT

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

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.

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.

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.

18 It is in this context that I commence my consideration of the present application against the provisions of Part 4.3 of the DCP. Consistent with the decision of the Court of Appeal in Zhang v Canterbury City Council (2001) 115 LGERA 373, I use the relevant provisions of the DCP as the focus or starting point for my consideration.

19 The first objective means that a property which has a particular kind of view, the nature of which is specified as being important, should continue to have some element of that view retained. The second of the objectives imposes an obligation to minimise that loss and the third, in my opinion, really says that, where there are conflicting interests in an existing view, it is an appropriate course to follow to seek an acceptable sharing of access to those views. In this context, I note that the words of the third of the relevant objectives of the DCP, which is to maintain and share views with existing and future Manly residents, contains, in my opinion, an inherent inconsistency. To maintain something is to retain it as it is whilst to share it is to apportion it between two more beneficiaries. It is not possible to do both, simultaneously, to the same view.

20 As a consequence, although I appreciate that development control plans are not drafted by Parliamentary counsel, there is a degree of difficulty in endeavouring to ascertain precisely what might have been intended by this provision.

21 It is as a consequence of this internal inconsistency and the note to these provisions of the DCP proposing the utilisation of the Tenacity principles (although there is nothing which explains, anywhere in the language of the DCP, what is the status of such notes), that it is appropriate for me to turn to the process set out in Tenacity to provide guidance as to what might have been intended by that provision of the DCP and to give, as the note exhorts, a framework within which to make that assessment.

22 The first of the controls, as it is self-evident, sets the requirement that building design should be coupled with an aspiration to minimise the impact on other properties in the vicinity. The second control clearly deals with the circumstances where non-compliance with the development control plan is sought and that non-compliances which impact on what are described as primary views from neighbours’ living areas will not be approved. The second control also acknowledges that development and redevelopment will occur within the council's area and that the designs for such proposals should give an appropriate regard to the impact on the neighbour's views (whether those neighbours are immediate neighbours or are slightly more removed from the development site).

23 The third control, dealing with the erection of height poles and the like, has been satisfied in this application by the erection of the height poles as shown in the photograph reproduced below.

24 I turn to consider the impact on the views from the Stuarts’ property. In so doing, what I must assess first is whether the applicant’s east/west line should be approved given the impact that that would have on views from the Stuart property.

25 As noted, the applicant had erected height poles on the site which, although not precisely on the relevant corner for assessing impact on the proposal, were accurately located in an east/west line and thus could be used to assess the impact on the views from the Stuart residence.

26 The line for which the applicant originally sought approval from the Court is that depicted by the height poles. The consequence of the amendment to the application made on the second day of proceedings (being an amendment which will require a significant revision of the layout of the upper level of the proposed dwelling) is a line which coincides with the line of the southern edge of the carport forming part of the existing structures on the site. This line can also be clearly understood from the photograph below.

27 Ms Stuart had, helpfully, provided a number of photographs from the upper living of her property showing the height poles and the view to the east from a position within this living area. One of these photographs, although taken with an element of zooming in its focus, is particularly useful in understanding the issues this case. It is reproduced below:

28 Although not able to be envisaged with as much precision from the above photograph (because the council's position is based on a point identification rather than a line), the council contends that the appropriate northern setback would be along an east/west line drawn as intersecting the bathroom vent clearly visible in the photograph (and circled by me for the purposes of this decision).

29 The council contends, through Mr Layman, that an east-west running line bisecting this vent is the appropriate setback for the first floor of the proposal. In addition, the council contends that there should be no intrusion into the 8 m setback from the rear boundary.

30 At the present time, the plans propose (and the amended setback line also anticipates), that an ensuite bathroom to the master bedroom would be located on the north-west corner of the first floor with the master bedroom be immediately to the east of this along the northern face of the building.

31 It is the council's submission that I should interpret the first of the Tenacity principles as not merely requiring that the development be compliant with all the elements of the planning controls which effect the impact on the Stuarts’ views but also with all other allegedly breached elements of the planning controls (which are inherently irrelevant to any impact on the Stuarts’ views).

32 I do not read the test in such a fashion. I am satisfied that a proper reading of the proposition is that I should have regard to whether or not those elements of the design proposed by the applicant which impact on the views from Stuarts’ property are compliant or not.

33 The first of the Tenacity principles proposes that I make an assessment of the views that are presently enjoyed from the upper living areas of the Stuart property. I confine my consideration to the living areas at the upper level of the Stuart property as I do not consider that there could be any realistic expectation of retaining any views of significance from the ground floor living areas of this property. Indeed, I do not understand that the council suggests to the contrary.

34 The first floor setback line proposed by the applicant would mean, for persons standing in, approximately, the centre of that living space, that:

• the Manly development skyline would be retained;
• a portion of the view over that skyline to the ocean beyond would be retained;
• a portion (but not the majority) of the view of Manly Cove would be retained;
• the view of the major building of the St Patrick's complex would be confined to a view of the tower and of the northern wing whilst the southern wing of the building would be obscured; and
• the larger portion of the vegetated area of North Head would be obscured.

35 I now turn to the second phase of a Tenacity assessment of the views as they would be enjoyed from the upper level of the Stuart dwelling. The windows of rooms to the south of this living space at the upper level would lose the views that they presently have of all or part of the few elements discussed above.

36 The first stage of this assessment requires that I consider how the impact on the whole of this property should be characterised. This, in essence, is the principal subjective part of the process. The submission of the Council is, unsurprisingly in the circumstances, that the loss of these views is at the higher end of the scale – that is severe or devastating – and thus warranting refusal of the present proposal. Also unsurprisingly, the applicant’s submission is that the loss of views is at the lower end of the scale – that is negligible or minor – and thus not warranting refusal of the proposal. As is often the case, the answer, in my view, lies somewhere in between.

37 Whilst I appreciate that particular circumstances in the Stuart household have the effect of making this view from the upper living areas appreciated on a more constant basis than might ordinarily be expected, this is an individual circumstance which I am not permitted to take into account in this assessment. Therefore, it is my assessment, on a conventional basis, that the loss of views from the whole of the house, having regard to the various rooms (and the reasonableness or otherwise of envisaging retention of views from them) should only be regarded as moderate. Although the views of the St Patrick's complex have a particularity, I do not consider that they have an iconic status and, thus, must effectively be preserved. Particularly, I do not consider that the loss of portion of the main building of the St Patrick's complex significantly lessens the landmark identification element of that aspect of the view.

38 Mr Boston, for the applicant, suggested that the removal of shelving on the northern wall of the Stuarts first-floor living room or removal of the internal dividing wall between the living room and its adjacent annex would provide significant view benefits to the Stuarts. I do not consider it appropriate to assess this issue on some hypothetical requirement for the Stuarts to undertake a renovation of or significant modification to their own dwelling in order to compensate for some loss of their existing views. However, having said that, it is not unreasonable to expect that rearrangement of furniture or the manner of use of a room will not be taken into account in order to ameliorate any impact of view loss which might otherwise be experienced more significantly if the room were to remain entirely unchanged. Such options were, to a modest extent, available to the Stuarts, on my observation.

39 The setback at the ground level from the northern boundary of the site is compliant and the now proposed first floor setback is significantly more than that which is required for compliance.

40 I am therefore satisfied that a proper consideration of this aspect of the view assessment is that, for the impact of the Stuarts’ property, this ultimately should be regarded as a complying development having a moderate impact on the Stuarts’ views.

41 Having reached that conclusion, I then turn to whether a more skilful design would provide the same development potential and amenity to the applicant whilst providing a further view benefit to the Stuarts. Mr Layman is of the opinion that the further setback to the south advocated by the council would enable the retention of a building envelope which still yielded the maximum permitted FSR whilst, at the same time, retaining for the applicant the same broad levels of amenity that the present design incorporates at the first floor. It was his evidence that this could be incorporated in any amendments to the internal layout needed as a consequence of the further increase in setback to that now proposed in the applicant’s amended application.

42 I am unable to accept this proposition. The sketch Mr Layman prepared would certainly have retained the kitchen, living and eating areas, again in broad, with the same general level of amenity for them as in the applicant's proposal. However, the master bedroom is presently proposed to have a north-easterly aspect from its windows with, to the extent that the fenestration of this room would permit, attractive district and distant ocean views. This bedroom would also enjoy good solar access. This master bedroom would be replaced by a master bedroom in the south-western corner which would have none of these attributes.

43 The present study proposed for the south-western corner would also have to be sacrificed at that level and incorporated on the ground floor space of the building to make way for this relocated master bedroom.

44 I do not consider that it would be reasonable to regard this as retaining the same level of amenity by this change in design compared to that presently proposed. I am therefore satisfied that, on the fourth of the Tenacity propositions, the present compliant design could not, on the council's own submitted basis, be designed in a different fashion to provide the same development potential and amenity as exists in the present design.

45 It is, in my opinion, therefore unreasonable to consider that there should be any further change to the applicant’s design in order to reduce the moderate impact of a compliant design (and indeed the moderate impact of an over-compliant design), to a negligible to low impact from a super-over-compliant design as proposed by the council.

46 It follows that I have, therefore, concluded that the applicant’s proposed northern setback is acceptable.

47 I therefore turn to consider the impact on the views from the property diagonally to the south-west.

48 Here, I note that, for reasons outside Ms Kermond’s control, I was unable to access her property during a site inspection to undertake an assessment of the views and the view loss which would be involved by the amended application.

49 In her instance, as well, her ability to assess her own view loss is, some extent, impaired by the fact that the relevant height pole in the north-western corner of the proposal is erected at a location of some 2 m further to the west than the correct location as its erection at the correct location would have required structural interference with the existing carport. Whilst I have had the benefit of a painted in yellow marker on the roof of that carport, it provides less assistance that would have been the position had the pole being erected in the correct location.

50 Accepting her evidence but not having had the opportunity of visiting the sunroom in her property on the north-eastern corner at the upper level, I note that the views from this room are over the south-eastern corner of the Stuarts’ property; over the site and, at least to some extent, over the roof of 13 Seaview Street. These views include district and ocean views to the north-east. I accept her evidence that these views are highly valued and formed part of the reason why she purchased the property. I accept, for the second of the Tenacity assessment steps, that these views are the only ones of significance enjoyed by her. Although there may be some other glimpses toward North Head in a more direct and easterly direction, this is a view line significantly impacted by vegetation on other properties including the council's road reserve.

51 For the third step in Tenacity for this property, I accept that this view loss is at least severe. The moving of the north-western corner of the proposed development further to the south will, in Mr Layman’s opinion, merely effect a minor improvement in the extent of view loss from this property. However, a major element in view loss is occasioned by the intrusion, into the rear setback, of the ensuite bathroom to the master bedroom at the first floor level. This ensuite is, to say the least, very generously proportioned as it is some 4.7 m from north to south and in excess of 2.6 m in an east-west direction. It is, essentially, the full width of this east-west dimension which comprises the non-compliance with the rear boundary setback.

52 In this aspect of the view impact assessment, in considering the final Tenacity test, that, adopting the interpretation I took earlier, the question now relates to a non-compliant development which has an impact on the relevant view which is severely diminished.

53 I therefore turn to consider, in this instance, whether a more skilful design of this element of the proposal could provide the same development potential and level of amenity for the applicant. To this extent, I am satisfied that the answer to this limited question is “yes”. If the non-compliance was removed, it was Mr Layman’s evidence that there would be perhaps a 10-15% saving of the loss of view from the dwelling to the south-west. This, he said, was one of the reasons for requiring strict adherence to the rear boundary setback provision at the first-floor level of the proposal.

54 There is no consistency visible from the aerial photographs available to me as to compliance with the rear setback provisions in the various surrounding developments. Whilst I appreciate that many (if not all) of those developments may well have predated the present development controls, nonetheless it is in the context of the surrounding development that it is appropriate to consider the necessity or otherwise to meet the present controls.

55 In this case, given that pattern of surrounding development, I do not consider that it is necessary to require slavish adoption of the rear setback element of those planning controls if the impact of the breach can be remedied in some other fashion. In particular, the ensuite bathroom involved is of such generous dimensions that it could not be suggested that that total space was required for mere functionality.

56 I am satisfied that an alteration of the dimensions and/or location of this ensuite, so that the north-western corner of this bathroom element of the building is moved to the south (and also provide articulation to the north-western corner of the proposal at the first-floor level) can permit intrusion into the rear setback in a fashion that will not have the same rear setback breach impact on the views of the property to the south-west.

57 To achieve this, a line between the relocated corner of the ensuite and the now resultant principal north-western corner of the building, when extended to the south-west, is to bisect the line of the east-facing windows of Ms Kermond’s first-floor sunroom. Given the nature of fenestration of this sunroom shown to me in a photograph in the council's bundle, I am satisfied that such a rearrangement of the ensuite to the master bedroom, including, if necessary, reductions in its dimensions in each direction, would render the application sufficiently compliant, when coupled with the amelioration of the view for the residents to the south-west, to be acceptable.

58 I have reached this conclusion, despite not having had the opportunity to inspect this neighbouring property, because the view which is to be impacted is, essentially, a “borrowed” one and a significant element of it is being effectively preserved not merely by the relocation required of the master bedroom’s ensuite bathroom but also because of the significantly more than minimum setback from the northern boundary that is involved in the present amended application.

Conclusion

59 For the reasons previously set out, I have concluded, therefore, that the line proposed by the applicant as the northern setback at the first-floor level, if adopted, does not have a sufficiently adverse impact on the Stuarts’ views to warrant my rejection of that line.

60 I have reached this conclusion based on the application of the Tenacity principles to the view loss from the upper living area of the Stuarts’ dwelling when coupled the consideration that, properly construed for these purposes, the proposal is a compliant one and where the applicant could not be provided with the same amenity if further preservation of the Stuarts’ views were to be attempted.

61 With respect to the view impact from the property that the south-west, I am satisfied that the impact on this property’s views are caused by the non-compliant first-floor element of the application involving an intrusion into the required rear boundary setback. However, I have concluded that this can be rendered acceptable by requiring a modest further change which will involve alterations of the location and, probably, dimensions of the master bedroom’s ensuite bathroom. Requiring this change, which I am satisfied is capable of being accommodated though minor change within the present design changes which will be rendered necessary by the now amended northern setback at the first-floor level, would render the totality of the view loss impact acceptable.

Tim Moore
Commissioner of the Court