Chan v City of Canada Bay Council

[2021] NSWLEC 1088

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Chan v City of Canada Bay Council [2021] NSWLEC 1088

Hearing dates:

3 and 4 February 2021

Date of orders:

24 March 2021

Decision date:

22 February 2021

Jurisdiction:

Class 1

Before:

Clay AC

Decision:

The Court makes the following orders:

(1) The appeal is upheld.

(2) Modification application MOD2020/0025 of development consent DA2018/0139 for the boarding house at Lot 1 Deposited Plan 902418 known as 97 St Georges Crescent, Drummoyne is determined by approval subject to the conditions in Annexure A.

(3) The exhibits other than exhibit 1 are returned.

Catchwords:

MODIFICATION APPLICATION – consent for boarding house – increase in height sought – improved amenity of some boarding rooms – no additional accommodation – impact on character of the area – reduced overshadowing of adjoining property – impact on views across the site – iconic view – application of Tenacity principles – reasonableness of the proposal

Legislation Cited:

Canada Bay Local Environmental Plan 2013

Environmental Planning and Assessment Act 1979 ss 4.15, 4.55, 8.9

Environmental Planning and Assessment Regulation 2000 cl 122A

State Environmental Planning Policy (Affordable Rental Housing) 2009 cll 26, 29

Cases Cited:

Chan v City of Canada Bay Council [2019] NSWLEC 1530

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

Category:

Principal judgment

Parties:

See Ching Chan (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
R O’Gorman-Hughes (Applicant)
S Kondilios (Solicitor) (Respondent)

Solicitors:
Conomos Legal (Applicant)
Hall & Wilcox Lawyers (Respondent)

File Number(s):

2020/129315

Publication restriction:

Nil

Judgment

1. On 5 November 2019 the Court granted development consent (consent) to DA No 2018/0139 for alterations and additions to an existing dwelling and the construction of a three storey building to the rear and use of the existing and new buildings as a 7 room boarding house (boarding house) at 97 St Georges Crescent, Drummoyne (site).

2. The boarding house has not yet been constructed.

3. The Applicant has made an application to modify the consent pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act) to increase the height of the rear building of the boarding house by an overall 600mm (modification application) in the following manner:

• Raise the ground floor by 200mm;

• Increase the floor to ceiling height of the four ground floor boarding rooms by 300mm from 2.4m to 2.7m;

• Add a parapet to the roof of 100mm in height.

4. The Council has not determined the modification application and it is deemed to have been refused (cl 122A Environmental Planning and Assessment Regulation 2000). This is an appeal pursuant to s 8.9 of the EP&A Act against the deemed refusal of the modification application.

The site and surrounds

5. The site is on the southern corner of Lyons Road and St Georges Crescent, with a frontage to St Georges Crescent of 10.82m and a frontage to Lyons Road of 51.38m. The site has an area of 576.9 sqm.

6. The site contains a modest, single storey detached dwelling house fronting St Georges Terrace, constructed in the Federation style of architecture. The backyard of the existing dwelling is at a raised level to the floor level of the dwelling and is below the footpath level on Lyons Road.

7. The property to the rear of the site at 1 Lyons Road runs through to Albert street to the south (perpendicular to the site) and contains a three and four storey residential flat building with vehicular entry at the rear of the site from Albert Street. Directly to the south of the site is 95 St Georges Terrace, a single storey dwelling also in the Federation style of architecture. The backyard of number 95 is immediately adjacent to the backyard of number 97 where the rear building of the boarding house is to be constructed.

8. Across the road on Lyons Road are large two and three storey dwellings, including one under construction, which are elevated above Lyons Road. From most of the nearby dwellings on that side of Lyons Road, there is a view to elements of Sydney Harbour and the Sydney Harbour Bridge (Bridge) across the site.

The consent

9. The consent was granted by the Court after a contested hearing (Chan v City of Canada Bay Council [2019] NSWLEC 1530, O’Neill C).

10. It is relevant to record some of the observations made by the learned Commissioner. The proposal which was approved is described as follows:

“[10]    The proposal is to retain the existing dwelling and carry out alterations and additions to convert the dwelling into three boarding rooms, a communal kitchen and a communal living room.

[11]    The proposal is to construct a three level pavilion style addition at the rear of the existing dwelling, containing four boarding rooms and bathrooms on the ground level, a garage to house 3 vehicles on the first level accessed via Lyons Road and a manager’s room on the uppermost level with a balcony.”

11. At [35] the Commissioner found that the design of the proposal is compatible with the character of the local area. In relation to overshadowing, at [43] the Commissioner said:

“[43]   The overshadowing of the adjoining property to the south of the site is a function of the orientation of the properties and the bulk and scale of the new building at the rear of the existing dwelling due to the retention of the existing dwelling. As the site is within a R3 zone, the proposal has a density and scale that is significantly less than the FSR that is permitted as a “do not refuse” standard on this site for a boarding house, the height of the proposal is not more than the maximum building height permitted under LEP 2013 and the side setback is an acceptable 1.5m; I accept Mr Robinson’s evidence that the significant overshadowing impact of the proposal on the adjoining property is in all the circumstances of this matter acceptable and that the overshadowing of the adjoining property has been minimised.”

12. In relation to the impact on views from the neighbouring properties the Commissioner said at [44]:

“[44]   The impact of the proposal on views across the site from the ground floor level of two dwellings on the opposite side of Lyons Road was pressed by the Council. I accept the planning experts’ agreement that it is less reasonable to expect to retain views from the ground floor of those dwellings across the site and the view impact of the proposal is reasonable given that the proposal complies with the height of buildings development standard for the site of 8.5m.”

13. There was debate in the case about the level of amenity to be provided to the four boarding rooms below Lyons Road, which are the primary beneficiaries of the proposed increased height in the modification application. The Commissioner said at [45] and [46]:

“[45]    I agree with Mr Mead that the amenity of the four boarding rooms on the ground level of the rear building, with a floor level significantly below the level of the footpath, is compromised and would not be acceptable for an apartment in a residential flat building.

[46]    I accept the applicant’s submission that the provision of a small private outdoor area to the north of each of those four boarding rooms provides better amenity than is mandated by SEPP ARH and that the only amenity requirement for a boarding house development under SEPP ARH is a “do not refuse” standard that at least one communal living room receives a minimum of 3 hours direct sunlight between 9am and 3pm on the winter solstice, at cl 29(1)(c), which is met.”

14. The site is not in a heritage conservation area but is adjacent to, or in the vicinity of two heritage conservation areas. The Commissioner said:

“[47]    There is an eclectic mix of development in the vicinity of the site, including townhouses, residential flat buildings, large single dwellings and a multi-storey institutional building on the opposite side of the street which was formerly a residential aged care facility. The adjoining site to the rear contains a residential flat building of up to four storeys.

[48]   By retaining the existing dwelling (a modest Federation style cottage which dates from a key period of development in the locality) and locating the new contemporary building to the rear of the existing dwelling, the proposal contributes to the setting of the nearby HCAs and to the interpretation of those HCAs. I am satisfied that the retention of the existing dwelling on the site provides an appropriate visual setting for the HCAs and that the treatment of the front setback maintains the existing character of the locality. The rear addition is commensurate with the bulk and scale of development typical of the R3 Medium Density Residential zone.”

15. The Commissioner noted that the maximum floor space ratio permissible was 1:1 and that the floor space ratio of the then proposed boarding house was 0.56:1.

16. The conclusions of the learned Commissioner were of course based on the development application and evidence before her. However, there is nothing in the judgment with which I would differ. The question is the effect of the increased height proposed for the new pavilion in the present rear yard based on the evidence before me.

The modification

17. The proposed modification effectively raised the approved pavilion style building in the rear yard by 500mm, and then provides a parapet of 100mm around the perimeter of the roof.

18. The four boarding rooms proposed in the pavilion will have their floor raised by 200mm and the ceiling raised by 300mm. The Applicant says that the purpose of those changes is to improve the amenity of those four rooms which face Lyons Road. The rooms face south and are about 2m from the boundary. Each room has the benefit of a small courtyard to the south between the face of the building and the boundary with Lyons Road.

19. By raising the floor and increasing the height of the ceiling, the effect of the modification is to improve the amenity of the four boarding rooms facing Lyons Road by improving spatial amenity and increasing the amount of light and direct sun into the rooms. The other consequence is of course that the view from the level 2 managers room is improved.

20. The parapet is said by the Applicant to be necessary to properly deal with rainwater and drainage of the roof.

21. There is no change to the floor space. There is a small change to level 2 whereby the balcony is cut back and its roof lowered, the effect of which is to increase elements of the harbour view from certain locations and to increase to a degree the solar access to the rear yard of the neighbouring property at 95 St Georges Crescent. There is no other modification proposed.

Planning framework

22. The site is zoned R3 Medium Density Residential pursuant to Canada Bay Local Environmental Plan 2013 (CBLEP 2013) (Land Zoning Map Sheet LZN_006 of CBLEP 2013). Boarding houses are a nominate permissible use with consent. 

23. The development application was, and the modification application is, made pursuant to State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH) Division 3 Boarding Houses. Division 3 applies to land zoned R3 (cl 26).

24. There had been some debate about whether the modification application complied with the height control of 8.5m in CBLEP 2013 because of the potential disagreement about the level of ground level (existing) in the rear yard. However, it was agreed between the parties and the experts that relevantly there was compliance, having agreed that the existing level of the rear yard was the ground level (existing) for the purposes of assessment.

25. A consent authority must not refuse consent to development to which Div 3 of SEPP ARH applies on the grounds of density or scale if the density and scale of the building when expressed as a floor space ratio (FSR) are not more than, at cl 29(1):

…

(c) if the development is on land within a zone in which residential flat buildings are permitted and the land does not contain a heritage item that is identified in an environmental planning instrument or an interim heritage order or on the State Heritage Register—the existing maximum floor space ratio for any form of residential accommodation permitted on the land, plus:

(i) 0.5:1, if the existing maximum floor space ratio is 2.5:1 or less,

26. Residential flat buildings are permitted in the R3 zone and the site does not contain a heritage item identified in an environmental planning instrument, nor is the site the subject of an interim heritage order. The FSR development standard for the site is 0.5:1 and the bonus FSR at cl 29(1)(c)(i) is 0.5:1, giving a total maximum FSR of 1:1 for the proposal. The FSR of the approved development is 0.56:1 and there is no change proposed in the modification application.

Public submissions

27. After notification by the Council in accordance with its policy there were 12 submissions opposing the modification. The issues raised were generally:

• Increased height leads to the building being out of character;

• The height is non-compliant;

• Unsatisfactory visual impact to adjoining and nearby residential properties;

• Loss of district, water and iconic views.

28. Mr T Eakin of 12 Lyons Road gave oral evidence at the hearing in addition to his written submissions. That evidence is referred to in the consideration of view loss below.

Expert evidence

29. The applicant relied on the expert evidence of Mr Andrew Robinson (planning) and Mr B Carruthers (traffic). The Council relied on the expert evidence of Mr P Giaprakas (planning) and Mr Brendan MacGillicuddy (traffic).

30. The traffic experts prepared a joint report and were not required to give oral evidence. They agreed that with the provision of additional information the driveway complied with the relevant Australian Standard. The planners gave oral evidence.

Issues

31. The issues at the hearing were ultimately relatively simple:

• Whether the positive impact of improved solar access to 95 Lyons Road would outweigh the additional impacts negative impacts of the modification application;

• Whether the additional view loss occasioned to 12 Lyons Road was acceptable.

Consideration

Solar access to 95 St Georges Crescent

32. At [12] above I set out the conclusion of O’Neill C concerning the inevitability of overshadowing to 95 St Georges Crescent, having regard to the orientation of the site and the permissible uses and controls. The modification application improves solar access to the rear yard 95 St Georges Crescent, but Mr Giaprakas said the improvement was negligible and the Council submitted it was de minimis.

33. Mr Robinson said that the improvement was measurable and would be appreciated by users of the rear yard.

34. The fact is the modification means that there is a strip of sunshine falling on the ground of the rear yard about 8m in length and about 1m wide for about two hours on the winter solstice between 10am and noon. The area of the ground in sun during that period increases generally by about 7sqm to 8sqm (it clearly varies over that time as the sun moves). Although that increase is modest in absolute terms, because of the extent of overshading from the approved development, the amount of direct sunlight increases by between roughly 15% to 25% during that time.

35. It is well accepted that the winter solstice is both the day when the sun is at its lowest and a “barometer” for the availability of solar access throughout the year. That is to say, a modest improvement on the winter solstice is also likely to be reflected in greater improvement during the remainder of the year.

36. The improvement is more than negligible and de minimis. I agree with Mr Robinson that it will be noticeable, but in any event a minor increase. The large percentage increase in solar access to the rear yard disguises the significant effect of the approved development in any event.

37. It was not put more than faintly, if at all, by the Applicant that the improved solar access to 95 St Georges Crescent outweighed a view impact on 12 Lyons Road when all impacts are balanced. Whilst the modification application has the benefit of improving that solar access, it is a relatively minor improvement and would not of itself outweigh an unacceptable view loss to another property in the balancing of impacts.

View loss

38. The Applicant’s architect provided a very careful analysis of view loss from properties on Lyons Road which have the benefit of a view over the site to the district, Sydney Harbour and the Bridge. Mr Giaprakas and the Council accepted the accuracy of the analysis after Mr Giaprakas took the opportunity given to him during the hearing to confer with Mr Robinson and the architect to check how the analysis was carried out.

39. It was common ground between the experts that the only property from which there was an issue was 12 Lyons Road, the home of the Eakin family.

40. Mr Eakin gave evidence about his concern about view loss. He said the view is iconic – including the Bridge – and that every centimetre increase in the height of the boarding house affects that iconic view. He was also concerned about the impact on the character of the area and that the increased height did not address that issue.

41. The view analysis showed the impact of the proposal on the views available when sitting on the ground floor (albeit elevated ground floor) balcony and the first floor balcony. Mr Eakin described the accommodation on each floor as follows:

• Ground floor – behind the balcony is the dining room, to the left when looking from the street is the entrance from the front door and the hallway to the rear of the house. Further back from the dining room is the kitchen, family/lounge room and informal dining. There is one bedroom also to the rear of the ground floor.

• First floor – there are three bedrooms including the main bedroom at the front. Adjacent to the main bedroom and immediately behind the balcony is an open area with lounge chairs which he described as a parents’ retreat. There were also two other bedrooms on the ground floor.

42. The description by Mr Eakin concurred with the observations the planners made when they attended the property to observe the photos being taken which were used in the view loss analysis.

43. Each of the balconies is about 2m deep and there are French doors which open from the adjacent room to the respective balconies. On the ground floor balcony there was a bench seat at the end of the balcony which faced to the west, whereas the view is presently available to the south. That is, a person seated on the bench would not ordinarily be able to enjoy the view.

44. The experts agreed that there was no view loss from the first floor balcony. The view loss at issue was from the ground floor balcony. The only image available from the ground floor balcony in the view analysis during the hearing was from a seated position which was described as the “worst case scenario”.

45. The view from the sitting position from the ground floor balcony available over the approved development is shown below:

46. The view from the sitting position from the ground floor balcony available over the modification application is shown below:

47. It is readily apparent that the increased height means that much of the land/water interface below the Bridge is lost. That became the key debate between the experts and the parties.

48. The Council did not identify a particular legal planning context for the assessment of view loss other than the view loss is an impact of the development and needs to be considered having regard to s 4.55(3) of the EP&A Act which provides:

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

49. Section 4.15(1) of the EP&A Act includes:

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)  the suitability of the site for the development,

(d)  any submissions made in accordance with this Act or the regulations,..

50. Logically, the impact on view is therefore a mandatory relevant consideration, as are the submissions from Mr Eakin (and all others). The Applicant did not depart from that position.

51. The parties accepted that the consideration of the well-known planning principle in Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity) was appropriate. Neither planner had done a written analysis of the impact on views applying that planning principle, but both gave oral evidence having regard to the principle.

52. Mr Robinson opined that the iconic view of the Bridge was retained and that the loss of the land/water interface was not important. He said that sitting was not a likely use of the balcony because it was outside the dining room rather than a living room. He pointed to the availability of expansive unaffected views from the upstairs balcony and characterised the room behind the balcony as a lounge room.

53. Mr Robinson also said it was reasonable to improve the amenity of the four boarding rooms and that there was no reasonable alternative way of doing so such as lowering the building floor level to increase floor to ceiling height and that compressing the level 1 floor to ceiling (to less than the approved 2.4m) would lead to a failure to comply with the relevant Australian Standard for parking area opening. In oral evidence, Mr Robinson agreed that the standard to which he referred included allowing a van to access a parking area but he could not point to a reason whereby van access was desirable to a parking area for just three of the non-manager rooms which were available to residents on a “first come first served” basis.

54. In submissions the Applicant added that when considering the reasonableness of the proposal, consideration must be given to the fact that there is no height non-compliance which contributes to view loss and that the FSR of the boarding house is well below the maximum permissible and therefore with a different proposal the impact could have been worse but capable of being approved.

55. Mr Giaprakas said that the land/water interface was crucial in framing the iconic view of the Bridge and that the proposal takes away about two thirds of that interface (measured horizonatally). He said there were opportunities to improve amenity to the boarding rooms without increasing the height of the building.

56. In addition, the Council submitted that sitting on the ground floor balcony was possible and normal use of the balcony and that the view of the land/water interface when sitting should be protected.

57. The planners considered the extent of view loss to a person standing on the ground floor balcony (assumed height of view 1.6m) even though there was no view analysis from a standing position. Understandably, it was difficult to draw a conclusion with certainty and the planners agreed that the improved view may well include the land/water interface but they could not be certain without the proper view analysis.

58. I agree with Mr Giaprakas that the land/water interface is crucial in framing the iconic view of the Bridge. In Tenacity at [26] Roseth SC said:

“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.”

59. I agree with the then Senior Commissioner’s observations. A view of the Bridge is significantly enhanced when it has the framing of the land/water interface. The interface gives the Bridge a visual context, even though the land/water interface is the intervening peninsular. I conclude that the available view from a sitting position is highly valuable. It follows that the view from a standing position is also highly valuable.

60. The second step in Tenacity is to consider from where the view is enjoyed and whether it is from a sitting or standing position. At [27] it is said:

“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.”

61. There appears to be a slight overlap between the second and third steps, and all that needs to be observed here is that the view is across the site and from a sitting position in addition to the standing position. A sitting position view is more difficult to protect.

62. The third step is identified at [28]:

“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.”

63. There is truly more than one step here – first identify from where the view loss is suffered, second identify the use of that area in the context of the whole of the dwelling, and third, consider the other available views from other parts of the dwelling.

64. It is not appropriate in my opinion to look at the potential use of an area but rather to consider the ordinary and reasonable use having regard to the design and location of the particular area. The view loss is from the ground floor balcony.

65. The ground floor balcony does not lend itself to being a regular sitting area. The French doors open to the balcony and prevent seating being ordinarily located in a position to enjoy the view because seating would block the opening of the doors. The balcony is adjacent to a dining room rather than a living area. In the latter case there is a greater likelihood of the balcony being used regularly as an extension of the living area where sitting would regularly take place.

66. Here the principal living area is adjacent to the kitchen area at the rear of the dwelling on the ground floor. The ground floor is a more active area than the first floor. The more likely use of the balcony will be in conjunction with the dining room where the residents and/or their visitors may pass through the French doors to the balcony and stand and enjoy the view and the amenity of the dwelling. The front door of the dwelling is effectively a part of the balcony and the view would be enjoyed from a standing position as the occupants arrive and leave the dwelling. I also note, although it is not determinative, that there was no furniture on the balcony at the time of the hearing from which one could sit and enjoy the view.

67. I conclude therefore that the loss is from the ground floor balcony which is part of the living area of the dwelling but not adjacent to principal living area, and its more likely use is for persons standing rather than sitting.

68. The view is also available from the first floor and is an expansive view unaffected by the modification application. The image is below:

69. Whilst it is true that the room or area behind the first floor balcony is a living area, it is a living area adjacent to the main bedroom, and on which level there are two other bedrooms. Unlike the ground floor, it is not the hive of activity within the dwelling, but can be described as a parents’ retreat, an alternative lounge room typically enjoyed by the senior members of the household when seeking refuge from the hustle and bustle elsewhere in the house. There is no doubt that the view from the first floor and its balcony will be regularly enjoyed by the occupants, but it is not part of the principal living areas of the dwelling.

70. Having regard to the foregoing I conclude that the loss of view is moderate to severe.

71. In considering the reasonableness of the proposal (the final step in Tenacity) the Applicant is correct to point to relevant compliance with the height control as demonstrating reasonableness. However, I do not accept the proposition that there is capable of approval a compliant development which could be worse as a relevant consideration. The fact that a development does not achieve the maximum FSR may be a result of its benign nature, or more often it is a consequence of the constraints of a site and a recognition that the FSR control is a maximum rather than an entitlement. The fact that the FSR here is well below the maximum does not inexorably lead to the conclusion that there could have been more floor space added to the boarding house. Any larger proposal would have been considered on its merits having regard to the planning controls, the site constraints and the impacts of that development.

72. It must be taken into account that when granting the consent, the Court determined that the amenity of the boarding rooms was satisfactory and that the building without the proposed modification was an appropriate form of development. In so saying I accept entirely that the Applicant is entitled to seek to improve the amenity of the boarding house and, in the case of the parapet, ensure the proper operation of the stormwater collection system.

73. I accept that there may be ways to improve the amenity of the boarding rooms without increasing the height by 600mm overall. It is not appropriate that the floor level of the ground level be reduced because it is already well below the adjacent ground level at the street. The benefit of greater floor to ceiling height for those rooms would be of marginal benefit when the floor level is dropped.

74. In my view there is scope to reduce the floor to ceiling height of level 2, where the parking area and laundry and associated facilities are. The 2.4m said to be required for opening can be reduced to 2.1m to allow all motor cars to enter, and there can be a garage door system which does not require a greater opening than the floor to ceiling height of 2.1m according to Mr Robinson.

75. Balancing those factors in my opinion it is not necessary to retain the land/water interface from a sitting position from the ground floor balcony. That is a less likely use of that area and it is not adjacent to the main living area. The upper balcony is available for sitting and enjoying the more expansive view even though it is not adjacent to a living area

76. However, I consider that the land/water interface should be retained from the standing position on the ground floor balcony. As I have stated, it is the entrance to the home, on the same level as the heart of the home and is conducive to standing and enjoying the amenity and view, both in conjunction with the use of the adjacent dining room or otherwise. The amount of that interface should be the same as shown as being available from the sitting position over the roof of the approved development to the left or north of the roof.

77. The consequence for the height of the boarding house of that conclusion is presently unknown. At my request the Applicant asked his architect to prepare a view analysis from the standing position from the lower balcony. I did not regard it as necessary to be the subject of expert evidence because there were sufficient tools available to the Court to decide whether the land/water interface should be retained for the sitting position or the standing position. The key was to understand the available view and the extent to which it should be retained. The additional information is to determine whether the modification application can be approved in its present form or whether the height of the proposal needs to be reduced. If it is to be reduced it will only be marginal and the Applicant can elect how the reduction is to be achieved.

78. After drafting this judgment but before its delivery I received from the Applicant a view analysis from the standing position on the balcony of 12 Lyons Road. It was forwarded with the consent of the Council, but the Council made the following statement:

‘The Respondent consents to the tendering of these documents, but notes the following comments from expert planner, Peter Giaprakas with respect to the accuracy of the view analysis of 12 Lyons Road:

‘I cannot confirm the accuracy of this as the standing position representation has not been created from digital photo meta data. I understand that it will be a matter for the Court to decide based on the methodology and estimations provided by the creator and give consideration to what would be an alternative perspective of an actual standing position photo.

On the basis of accepting the sitting position photo montage provided to the Court, the standing position representation indicates more land will be visible, as expected, however as to whether the actual land/water interface would even be apparent from a standing position, and if it is, of what level of additional overall view quality it preserves, is questionable.

The actual RL of the standing height is unknown.’

Separately, immediately after the conclusion of these proceedings, the Respondent requested the Applicant undertake the same standing view analysis exercise for 10 Lyons Road contained SK7.07 of Exhibit C.

The Applicant has not complied with this request despite 10 Lyons Road being affected by the proposed development. In circumstances where there is a view impact to 10 Lyons Road arising from the proposed development, the Respondent submits a standing view analysis should also be completed from this property’s perspective.’

79. First, I do not regard it as acceptable that the Council expert considers it appropriate to state that the Court should “decide based on the methodology and estimations” provided by the Applicant, and that the Council adopts that position as its submission. It is not enough that an expert and a party simply offer no assistance to the Court. The Council and its expert must properly investigate, form an opinion and assist the Court. It is not enough to simply say, effectively, “I do not know”.

80. Second, the Council submitted at the hearing that the view loss impact decisive of the case concerned 12 Lyons Road. I make no further comment about the Council’s request to the Applicant but note that no application to re-open the case has been made.

81. Third, the view loss analysis, if accurate, does not demonstrate compliance with that which I have decided is an appropriate outcome.

82. The directions I will make, which have not changed as a consequence of the additional information, will enable the appropriate orders to be made.

Conclusion

83. The modification application requires amendment before it can be approved and during the course of the hearing I understood that the Applicant accepted that if I determined that the boarding house could be raised but not to the extent sought, the Applicant would accept a condition giving effect to that determination. It is preferable however that amended plans be prepared giving effect to the decision rather than a condition be imposed requiring amendment of the plans.

84. I would expect that the Applicant and Council will co-operate in achieving the outcome which I have determined is appropriate. That is, I expect the Applicant to consult with the Council to ensure that there is no dispute about the method by which the outcome is determined and that the Council give the question its proper attention. Liberty to apply will be granted in the event a further determination is required.

85. I make the following directions:

1. The Applicant is to file and serve amended plans demonstrating that the land/water interface view is retained for a view 1.6m above the floor of the ground floor balcony. The vertical extent of the land/water interface to be retained is the area shown to the left or north of the boarding house, being the higher component of the roof, on figure 3 of exhibit L.

2. The Applicant is to file and serve an agreed view analysis from the standing position on the ground floor balcony within 14 days, demonstrating compliance with direction (1).

3. Liberty to restore on 3 days’ notice by arrangement with the Listings Manager.

Addendum made on 24 March 2021

86. In accordance with the directions made by the Court on 22 February 2021 the Applicant has filed an additional view analysis and amended plans. The Council agrees that the view analysis is accurate and that the amended plans properly reflect the Court’s findings. The parties have also filed agreed conditions of consent.

87. Accordingly, I make the following orders:

1. The appeal is upheld.

2. Modification application MOD2020/0025 of development consent DA2018/0139 for the boarding house at Lot 1 Deposited Plan 902418 known as 97 St Georges Crescent, Drummoyne is determined by approval subject to the conditions in Annexure A.

3. The exhibits other than exhibit 1 are returned.

…………………………

P Clay

Acting Commissioner of the Court

Annexure A (181670, pdf)

Plans (6107754, pdf)

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Amendments

24 March 2021 - See addendum at [86]-[87].

Decision last updated: 24 March 2021