CHD Design Pty Ltd v City of Canada Bay Council

[2024] NSWLEC 1789

Land and Environment Court

New South Wales

Medium Neutral Citation:

CHD Design Pty Ltd v City of Canada Bay Council [2024] NSWLEC 1789

Hearing dates:

3 September 2024, final submissions received 4 and 6 September 2024.

Date of orders:

06 December 2024

Decision date:

06 December 2024

Jurisdiction:

Class 1

Before:

Porter C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Pursuant to s 39(2) of the Land and Environment Court Act 1979 and s 8.14(1) of the Environmental Planning and Assessment Act 1979, the restriction as to user in Part 2, Item (A) of registered s 88B instrument, dealing number DP 250661, is varied so that it does not restrict the construction of a two storey attached dual occupancy authorised by the development consent granted by Order 3.

(3) Development Application 2023/0241 for demolition of existing structures and construction of a two storey dual occupancy with strata subdivision at 5 The Esplanade Drummoyne is determined by the grant of consent subject to the conditions set out in Annexure A.

(4) The exhibits are returned except for 1, A and B.

Catchwords:

DEVELOPMENT APPEAL – dual occupancy – contentions resolved - covenant – variation of covenant – weight to be given to covenant - view sharing – community objections

Legislation Cited:

Conveyancing Act 1919, s 88B

Environmental Planning and Assessment Act 1979, ss 4.16, 8.7, 8.14

Land and Environment Court Act 1979, ss 34AA, 39

Local Government Act 1993, Pt 1, Ch 9,

Water Management Act 2000

Canada Bay Local Environmental Plan 2013, cll 1.9A, 2.3, 2.6, 2.7, 4.1A, 4.3, 4.4, 5.21, 5.22, 6.1, 6.2, 6.3, 6.13,

Environmental Planning and Assessment Regulation 2021

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Ch 6, cll 6.3, 6.7, 6.8, 6.9, 6.10, 6.28, 6.32.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6

State Environmental Planning Policy (Sustainable Buildings) 2022

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.48

Cases Cited:

Chehab v City of Canada Bay Council (2002) 123 LGERA 431; [2002] NSWLEC 220

Tenancy Consulting Vs Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140

Wenli Wang v North Sydney Council [2018] NSWLEC 122

Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 135

Texts Cited:

City of Canada Bay Development Control Plan

Category:

Principal judgment

Parties:

CHD Design Pty Ltd (Applicant)
City of Canada Bay Council (Respondent)

Representation:

Counsel:
M Parrino (Solicitor) (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Project Lawyers (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/67590

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: This is an appeal by CHD Design Pty Ltd (CHD Design) pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the deemed refusal of Development Application 2023/0241 (DA) by the City of Canada Bay Council (Council). The DA as filed to the Court sought consent for the demolition of existing structures, tree removal, construction of a two storey dual occupancy with basement works, stormwater works, landscaping works and strata subdivision at 5 The Esplanade, Drummoyne (site).

2. In accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act), the appeal commenced as a conciliation conference. As agreement could not be reached between the parties, the conciliation conference was terminated, and the hearing commenced immediately. The parties agreed at the commencement of the hearing for the oral objections heard on site to form part of the evidence for the hearing.

3. The Applicant sought leave to amend the DA, which was not opposed by Council, and granted by the Court. The below is a summary of the amendments:

• Reduction in overall height to 7m (skylights to a maximum of 300mm above 7m).

• Reduction in floor space ratio from deletion of barbeque area and reduced dining and kitchen floor areas.

• Minor increase in landscaping, including three canopy trees.

• Privacy measures and plantings along the side entries and rear first floor studies.

• Confirmation that the fireplace contains an exhaust outlet on the ground floor.

• Amended stormwater plans.

• Further view analysis.

4. Council advised the Court at the commencement of the hearing that on the basis of the joint expert report and amendments to the DA, that the raised contentions were no longer in dispute. In relation to the covenant, the Council neither opposes nor supports the proposed variation of a restrictive covenant that applies to the site.

5. At the end of the hearing, the parties were directed to provide to the Court:

• Agreed conditions of consent and word version of the agreed conditions of consent.

• An electronic copy of the view analysis assessment.

• Confirmation that the overshadowing drawings in Ex B show the required winter solstice date.

6. All information was received on 4 and 6 September 2024.

7. Acknowledging that the parties agree that the contentions have been resolved, the Court is required to undertake an assessment of the DA, including consideration of s 4.15 of the EPA Act and the preconditions to the grant of consent. This includes consideration of the submissions received in writing and orally by residents as well as consideration of the restrictive covenant that affects the site.

8. With consideration of these matters, I find that the proposed development should be granted development consent given its consistency with the suite of planning controls, character of the local area and extent of changes made to reduce its environmental impacts (particularly to address view sharing).

The site and context

9. I accept that the description of the site and context within the Statement of Facts and Contentions (SOFAC) (Ex 1) is apt and rely on it as set out below.

10. The site is located at 5 The Esplanade Drummoyne and legally known as Lot 5 in DP 250661. Corrected during the hearing, the site has a frontage of 14.02m which is separated by a road and road reserve before fronting the water. The rear boundary is 17.89m with side boundaries of 36m. The total site area is 584m². The site tips from the rear towards the street.

11. The site is affected by a restrictive covenant from when the site was created through a 1974 subdivision. As a result of a land resumption by the former Council of the Municipality of Drummoyne, a total of eight lots were created along The Esplanade. All are affected by the restrictive covenant. The s 88B Instrument was made pursuant to the Conveyancing Act 1919, which restricts use of the land in relation to eight elements, which I detail later. An easement to drain water also exists. Existing structures on site include a single storey dwelling with attached garage.

12. As observed at the site viewing, the locality is primarily low density residential development. Development is a mix of one and two storey dwellings that are generally orientated to maximise water views. To the rear along Victoria Place, development is primarily low density residential dwellings with some historical residential flat buildings and townhouse developments.

13. The site is zoned R2 Low Density Residential in accordance with the Canada Bay Local Environmental Plan (CBLEP).

The planning framework

14. The parties agree that the following planning legislation, environmental planning instruments and development control plans apply or are contented to be considered for the proposed development:

• EPA Act

• Environmental Planning and Assessment Regulation 2021 (EPA Reg)

• State Environmental Planning Policy (Biodiversity and Conservation) 2021 (SEPP BC).

• Chapter 6 Water Catchments

• State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (BASIX SEPP).

• State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP RH)

• Canada Bay Local Environmental Plan 2013 (CBLEP)

• City of Canada Bay Development Control Plan (CBDCP)

15. Whilst the SOFAC refers to the DA being integrated development, CHD Design did not elect for the development to be considered as integrated development. Accordingly, any water licence required to be obtained under the Water Management Act 2000 is to be obtained post-consent and forms part of the conditions of consent at Annexure A.

Expert Evidence

16. In accordance with its usual practice, the Court directed experts in planning to confer in relation to the contentions prior to the commencement of the proceedings.

17. Expert evidence for the planning issues was submitted in a joint expert report (Planning JER) (Ex 6) by David Waghorn for CHD Design and Edna Sorensen for Council. Oral evidence by the planning experts was provided during the hearing. The planning experts agreed that all planning issues had been resolved.

18. Expert evidence for stormwater matters was granted and provided through oral evidence by Sam Hakim for CHD Design and Stephen Chow for Council. The experts agreed that based on the further information in the amended DA and conditions of consent (for non-jurisdictional matters), that the insufficient information issues raised had been resolved.

The restrictive covenant issue

19. The parties agree that the suspension of covenants pursuant to cl 1.9A of the CBLEP does not apply, as the covenant is one that is imposed by Council. The covenant is therefore enforceable.

20. The parties agree that the Court has the power to vary, modify or revoke a covenant that is expressly preserved by an environmental planning instrument and enforceable by Council: see Chehab v City of Canada Bay Council [2002] NSWLEC 220 (Chehab) at [22] – [33] and Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 135.

21. Further, pursuant to s 39(4) of the LEC Act, a covenant is a mandatory consideration as an instrument made under a relevant Act (being the Conveyancing Act 1919) and s 4.15 of the EPA Act (being a matter for consideration arising from a provision of the CBLEP): see Chehab at [36] and Wenli Wang v North Sydney Council [2018] NSWLEC 122 at [22] - [23].

22. Whilst Pain J in Chehab did not make findings in relation to the weight that should be attributed to a restrict covenant in these circumstances as this is a question of fact and not law, Her Honour helpfully stated at [38]:

“I do note, however, that the weight which should be attributed to the restriction as to user will depend on matters such as how the restriction as to user has been enforced in the past. In other words, a Court is likely to give less weight to a restriction as to user that the Council has allowed to be modified, varied or revoked numerous times in the past, than one which has been strictly enforced by the Council.”

23. It is noted that Chehab considered the same covenant in the same street as the site.

24. Accordingly, I accept that the Court has power to vary the covenant. In relation to the weight to be given, I have considered the restrictive covenant as relevant to the issues, particularly height, bulk and view loss. However, Council’s previous decisions show that the covenant has been varied for several of the adjoining properties along the Esplanade for two storey dwellings. I therefore place less weight on the two storey restriction. The use as a dual occupancy is new, however, I detail my consideration of that element below and under the ‘covenant’ contention.

Terms of the covenant

25. The site is subject to a restriction as to user registered on the land pursuant to s 88B of the Conveyancing Act 1919 (restriction as to user). The nominated body who may release, vary or modify the covenant is Municipality of Drummoyne, now known as Canada Bay Council following an amalgamation of Council areas. The parties submitted that the Respondent is authorised to exercise any powers related to the former Municipality of Drummoyne Council.

26. The terms of the restrictive covenant are as follows:

“A. Not more than one main building shall be erected on the Lot burdened and such building shall be a single storey dwelling only.

B. The exterior walls of any main building erected on the Lot burdened shall not be constructed of any material other than brick or such other material approved by the Vendor.

C. The roof of any main building erected on the Lot burdened shall not be constructed of any material other than tiles or such other material approved by the Vendor.

D. No main building shall be erected on the Lot burdened unless such main building shall have reinforced concrete raft foundations constructed in accordance with the design approved by the Vendor.

E. No fence shall be erected on the Lot burdened without the consent of the Vendor but such consistent shall not be withheld if such fence is erected without expense to the Vendor.

F. No fence shall be erected on the Lot burdened unless the height of such fence erected and the material of which it is constructed is approved by the Vendor.

G. No building erected on the Lot burdened hall have a front building alignment less than 4.572m from the street alignment.”

27. The parties agree that the proposed development seeks to vary the restrictions of the covenant in relation to Item A.

28. For the reasons set out in my consideration of the contentions and issues raised in public submissions, I find that the covenant should be varied as it has been previously varied in the streetscap and as the environmental impacts from the proposed development are reasonably managed through the amended development’s design.

The Contentions

29. As previously stated, the parties agree that the contentions have been resolved. I set out my consideration of the contentions and evidence below.

Contention 1 - Excessive bulk and height

30. Contention 1 stated that the proposed floor space ratio (FSR) was exceeded and would result in unacceptable streetscape impacts and solar access impacts on 6 The Esplanade and view loss impacts to 317, 319, 323 and 325 Victoria Place. In addition, there was insufficient landscaping in comparison to the extent of built form proposed.

31. I accept the evidence of the planning experts set out in the Planning JER, oral evidence and supported by the amended architectural plans that the bulk and height contention is resolved. The architectural plans show that that the amended DA has reduced the extent of built form and consequently, the FSR has reduced from 0.55:1 to 0.5:1, no longer exceeding the maximum FSR of 0.5:1.

32. The planners outline in the Planning JER how the overall height should be reduced, which was subsequently reflected in the amended DA. The CBLEP allows a maximum height of 8.5m. The filed class 1 appeal proposed an overall height of 7.8m. The planners’ evidence is that recent two storey consents granted at adjoining properties at 1, 3, 10 and 18 The Esplanade ranged in height between 6.7m – 7.2m, also stated in the SOFAC at paragraph 13. Through a reduction of height to the building, the proposed height of the amended DA shown on the architectural plans and confirmed in oral evidence is 7m (which I have clarified in condition 1). The proposed skylights have a maximum height of 300mm. In oral evidence, the planners agreed that the design changes including a reduced height to 7m, deletion of the barbecue area and void space, reduced dining and kitchen floor area and increased side setbacks resulted in a reduced built form that was no longer excessive. With respect to the driveway, the architectural plans show that the driveway has been designed to appear as one. As observed on site, the basement garage element is not new in the streetscape. On this basis, I accept and adopt the evidence of the planners that the amended built form is not excessive and from my observations on site, is an appropriate contextual fit with two storey dwellings present in the streetscape.

33. I accept the evidence that the proposed height is consistent with two storey dwellings approved over the last twenty years at 1, 3, 10 and 18 The Esplanade. Proposed at 7m, below the CBLEP height limit of 8.5m, I accept that the restrictive covenant in relation to height should not be enforced due to the variations previously given and consistency with the streetscape character established over the past 20 years.

34. I address the solar access impacts on 4 and 6 The Esplanade at [77].

35. I address the view loss impacts to 319-325 Victoria Place from [40] onwards.

36. I accept on the evidence that the issues raised in Contention 1 have been resolved, that the preconditions for consent in relation to height and FSR are not exceeded and that the other raised particulars in this contention have been resolved through the amendments made to the DA.

Contention 2 - Landscaping

37. Control C4 in E4.6 for landscaped areas of the CBDCP seeks a minimum of 35% landscaping for dual occupancy development with 50% behind the building line. Control C1 in B6.10 Urban Tree Canopy requires three canopy trees.

38. The experts agree that the amended DA seeks a variation to the controls, proposing 28.4% landscaping and a significant proportion of that behind the building line. The agreed evidence is that the quality and scale of the landscaping has been improved to provide three canopy trees on site, additional landscaping along the side boundaries and permeable pavers within the front setback. I accept the evidence that the landscaping contention has been resolved and that the provision of canopy trees and addition side setback landscaping meets the objectives of control E4.6 because the landscaping provides shade and privacy to the rear and adjoining properties, hard paved areas are minimised through additional permeable pavers and through the inclusion of large, consolidated landscaped areas. Where referenced under contention 1, I find on the basis of the Landscape Planting Plan that sufficient landscaping has been proposed that is consistent with the built form to landscape ratio shown by newer developments in the street, with a lesser amount of front setback landscaping present than demonstrated by the older single storey dwelling stock. The control warrants flexibility in this instance.

39. The planners agree, and I find that a condition of consent should be placed on the rear canopy trees to ensure they reach a mature height sought by the CBDCP but are maintained to a maximum height of 4m to ensure views are not further impacted to the rear dwellings.

Contention 3 - View Sharing

40. Control E3.10 of the CBDCP provides controls in relation to access to views. These are set out below:

“Objectives

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

O2. To ensure views to and from the site are considered at the site analysis stage.

O3. To recognise the value of views from private dwellings and encourage view sharing based on the following four controls.

O4. To recognise the value of view sharing whilst not restricting the reasonable development potential of the site.

O5. Protect and enhance scenic and cultural landscapes.

Controls

C1. Development should seek to protect water views, iconic views and whole views. Water views are valued more highly than land views. Iconic views (eg of the Harbour Bridge or the City skyline) 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 the land and water is visible is more valuable than one in which it is obscured). An icon should be a prominent identifying feature of the landscape and should be commonly held by the wider community as having iconic status.

C2. Development should seek to protect views from the front and rear of buildings and where views are obtained from a standing position. The expectation to retain side views and sitting views is often unrealistic.

C3. Development should seek to protect views from living areas and minimise the extent of impact. 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 the Harbour Bridge. Council will attempt to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating.

C4. Development in view affected areas should not only be designed to meet relevant development controls but also be designed to achieve view sharing. A development that complies with all planning controls is 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 is unreasonable. A complying proposal of a more skillful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours.

C5. Ensure development in foreshore and peninsula localities do not adversely impact upon views to and from Parramatta River and Sydney Harbour, from within and outside the local government area.

C6. Development applications in foreshore and peninsula localities are required to include photomontages or computer modelling to illustrate the visual effects of the proposal as viewed from nearby public domain within and outside the LGA.”

41. The planning experts have considered the controls in the CBDCP and the Court’s planning principle for viewing sharing in Tenancy Consulting Vs Warringah [2004] NSWLEC 140 (planning principle). I note that the CBDCP controls are the primary consideration.

42. The planning experts agree that whilst there is some loss of views, the view loss caused by the amended DA is consistent with the controls for view sharing. A view loss assessment dated 28 June 2024 provides an analysis of impacts to the effected properties (view analysis). The Court benefitted from an on site viewing and oral objections from the affected properties.

43. For the reasons set out below, I accept the evidence of the planning experts that the proposed development balance’s view sharing between properties through an LEP compliant built form that does not overly restrict the reasonable development potential of the site, which is consistent with the objectives of Control E3.10 of the CBDCP.

317 Victoria Place, Drummoyne

44. The Applicant’s view analysis states that 317 Victoria Place currently obtains land-water interface views of the opposite side of Drummoyne Bay from the rear first floor living room and balcony. The view analysis shows standing views from the first floor balcony, with impacts on views of the land, some land-water interface areas and some moored boats.

45. The view analysis considered sitting and standing views from the first floor living areas which show a similar impact from a different view perspective. Increased views directly over the rear are available at 317 Victoria Place.

46. The view analysis states that the views are obtained over the side boundary, which are difficult to maintain and states that the view loss is considered to be minor. Better and unaffected views are available to the south. I accept that the view loss is reasonable for the reasons given by the view loss analysis and agreed evidence of the planners. Most views lost are over a side boundary, which is recognised by control C2 of E3.10 of the CBDCP and the planning principle as being difficult to maintain. I accept that the view loss is minor and that significant views of the moored boats, land-water interface and water views are maintained to the first floor living room and balcony over the rear boundary. Further, the proposed development is compliant with the built form controls and I have given less weight to the covenant due to the previous variations for adjoining two storey properties. I find that the view loss caused by the proposed development is consistent with the view sharing controls and objectives of the CBDCP.

Units 1-6/319 Victoria Place, Drummoyne

47. The view analysis undertaken by the Applicant encompasses all units at the three storey RFB at 1-6/319 Victoria Place. The Court and experts had the benefit of observing the affected views from 6/319 Victoria Place. The view analysis states that the views vary from each unit, but that a mix of partial and full water views to Drummoyne Bay are obtained and include land-water interface views. The assessment of view loss was considered between negligible (apartments 1 and 2), negligible-minor (apartments 3 and 4) and minor (apartments 5 and 6). Most views that are impacted are towards the rear and side boundaries.

48. The view analysis shows that the view impacts to apartments 1 and 2 from standing on the rear balcony are similar. These show negligible view loss to some water views and moored boats over the rear and primarily to the side. Expansive water views, moored boats and land-water interface views to the rear are maintained.

49. Apartments 3 and 4 show similar, though slightly different, view impacts to water views when standing at the rear balcony. Apartment 4 has increased water and moored boat impacts than apartment 3. Figures 15 and 16 show that expansive water views of moored boats, water and land-water interfaces are maintained.

50. Apartment 5 is the most impacted, with water-land interface and moored boats views impacted across the side boundary, shown in Figure 13 from a standing position of the rear balcony.

51. Apartment 6 shows some view loss impacts to the extent of water and moored boat views across the side boundary, taken from standing at the rear balcony. The vast majority of water views are maintained as shown in Figure 14. The Court and parties had the benefit of understanding view impacts from the rear open space area.

52. I agree with the degree of identified view impacts and accept the evidence that the views lost from the apartments at 319 Victoria Place are reasonable as set out in the view analysis. Consistent with C2 of E3.10 of the CBDCP, side views are difficult to retain. Most apartments retain expansive water views directly from their rear balconies. Apartment 5 is located at a lower point on its site where views are difficult to protect without unreasonable impacts on redevelopment of adjoining sites as sought to be balanced by the planning control’s objectives. Apartment 5 still retains some water views, including moored boats and land-water interface views. I accept that the proposed development has been designed to minimise its impacts, complies with the suite of applicable planning controls, and should not be restricted by the terms of the covenant that has been varied elsewhere on The Esplanade. I find that the view loss impacts are reasonable and consistent with E3.10 of the CBDCP and the planning principle.

323 Victoria Place, Drummoyne

53. 323 Victoria Place is the most affected property, being a two storey dwelling that is located directly to the rear of the site. The view analysis states that 323 Victoria Place receives a mix of full and partial water views of Drummoyne Bay, moored boats and land-water interface views. Impacted views include the ground floor balcony, rear cabana, ground floor dining table area, kitchen and first floor bedroom.

54. The views from all areas are achieved over the rear boundary. In relation to the ground floor balcony (standing), views are lost of a large portion of the moored boats and water area. Land-water interface views are generally retained. From a seated position, most views are lost, with some moored boats and the land-water interface being retained. The view analysis identifies that the cabana itself also blocks views of the water.

55. Within the cabana, the views sitting and standing are similar. Most of the views of the moored boats would be lost. Some land-water interface views are retained (more are retained when standing). Water and land-water interface views are retained for a portion over 6 The Esplanade.

56. Water views and land-water interface views when sitting from the ground floor dining table are primarily lost from the proposed development and existing cabana. Similar views obtained from standing in the ground floor kitchen are primarily lost, with a small extent of water views shown as being retained.

57. The first floor views from the bedroom experience some view loss to the water near the moored boats. Most of the water views and all land-water interface views are retained.

58. The view analysis concludes that the views currently obtained are still achieved over the rear boundary from standing or sitting views and interrupted by existing vegetation and built form. Important water and land-water views are still obtained. The extent of view loss was considered to be moderate.

59. With the benefit of the written and oral objections from 323 Victoria Place, site viewing and expert evidence, I accept the evidence that the view loss is consistent with the viewing sharing controls in E3.10 for the reasons provided in the view analysis. The planning controls seek to strike a balance between the value of view sharing between properties, a skilfully designed compliant development and reasonable redevelopment potential. Firstly, I find that there is minor view loss for the bedroom area, however I accept that this is not as highly valued as living areas. I accept the objector’s lay evidence and find that some of the view loss is severe, in particular to the dining area and kitchen which are frequently utilised rooms. However, I also accept the planning evidence that a two storey development is reasonable, that the proposed development is well below the CBLEP height limit control, complies with all built form controls and that little weight should be given to the covenant as it has been varied numerous times for adjoining properties. I accept that the overall view loss impact to 323 Victoria Place is between moderate to severe, but that reasonable view sharing is maintained for high use areas including the rear balcony and cabana consistent with the requirements of E3.10 of the CBDCP and the planning principle. These views retained include water views, water-land interface views and views of the moored boats.

325 Victoria Place, Drummoyne

60. 325 Victoria Place, a single storey dwelling, is also located to the rear and slightly to the north west of the site. The view analysis states that 325 Victoria Place receives land-water interface views of Drummoyne Bay. The impacted views are to the rear private open space (POS) and kitchen, which have been considered from a standing position for the POS and kitchen. The assessment notes that a proposed dual occupancy development for the site is under assessment but has given no weight to the DA in the view analysis.

61. Current views are partially impacted by vegetation and built forms. The agreed evidence of the planners is that the view loss is minor. I have given weight to the view analysis, objector’s lay evidence, site viewing and the proposed development’s compliance with the CBLEP built form controls and find that the view loss to the POS and kitchen is moderate and reasonable in the circumstances for the reasons stated in the view analysis. Figures 1 and 2 of the view analysis show, in my view, a moderate loss of views to a section of land-water interface but maintains more valuable and sizeable land-water interface views and views of the moored boats. I have also considered the terms of the restrictive covenant, however I find that restriction has been varied numerous times by Council and on that basis give little weight to it. I therefore accept that the view loss to 325 Victoria Place achieves reasonable view sharing in a manner sought by the controls and objectives of E3.10 of the CBDCP and planning principle.

Contention 4 – Privacy Impacts

62. Contention 4 raised privacy concerns from the side entry walkways with associated acoustic and visual privacy impacts. Privacy concerns were also raised from the elevated ground and first floor levels to the dwellings either side as well as the rear elevation for both existing and redevelopment of the sites in the future. Though not specified in the contention, control E3.8 of the CBDCP visual and acoustic privacy applies.

63. The Court had the benefit of hearing the oral concerns and observing the potential impacts from the adjoining neighbours. Another key concern raised was the privacy, acoustic and overshadowing impacts to the frequently utilised kitchen area.

64. In relation to the front entries, the expert planners agreed evidence is that the side entries have been redesigned to reduce the extent of the raised area near the entry steps and at the entrance, full height obscured glass is provided to protect privacy between the two side adjoining properties.

65. To the rear of the proposed development, the planning experts agreed that a combination of privacy screens to 1.6m and the up to 4m high landscaping will protect privacy between the proposed development and rear neighbour. The size of windows to the studies have been reduced in size with a sill height of 1.2m above finished floor level.

66. I accept the evidence of the planners that the design changes provide reasonable privacy between the adjoining properties either side and to the rear. The existing side brick fences will be retained, which provides some privacy along the ground floor. Acknowledging the raised ground level that is proposed, which has been reduced in height by the latest set of relied on architectural plans, I accept the evidence that visual privacy is managed through the full height obscured glazing of the side entryways and privacy screening of the powder rooms. In relation to acoustic privacy, the side entries are setback beyond the minimum side setback controls and will be utilised like any other dwelling. I accept that the acoustic impacts of residents and their visitors entering the respective dwellings along the side is a reasonably anticipated acoustic outcome for a low density residential development. I find that the ground floor windows have been designed to be mostly offset from the adjoining dwellings to minimise direct viewing, where that is possible. There are several windows along the dwelling at 6 The Esplanade where I accept that offsetting of these windows is difficult, but the impact is reasonable for a built up area in the Sydney region, even a low density area such as this. Consistent with control C3 of E3.8, I have imposed a condition for the ground floor habitable rooms to provide a minimum sill height of 1.5m from finished floor level along the side elevations. This appears to be the intent of the plans but has been included for the abundance of caution.

67. In relation to the first floor impacts, on the basis of the architectural plans I accept that there the windows along the side elevation do not have direct views into windows or principal private open spaces. Further, I accept the evidence that the size of the windows to the studies have been reduced in size and will be fitted with privacy louvres. The rooms to the rear are study areas and bedrooms that do not cause unreasonable privacy impacts due to their low use nature. In relation to the privacy of future redevelopment of adjoining sites, based on the architectural plans I find that there are sufficient blank wall areas along the side elevations to offset windows between the properties.

68. I find that the proposed privacy measures are consistent with control E3.8 visual and acoustic privacy in the CBDCP, with the exception of C6. C6 seeks a mature height of rear planting up to 6m, however this height would obscure water views for the rear neighbour. The variation of up to 4m in height meets the objectives of the control to provide privacy without further view impacts.

69. I deal with the overshadowing concerns of 4 The Esplanade at [77].

Contention 5 - Covenant

70. The reasoning in relation to consideration of the covenant arises in the consideration of other issues. I will summarise which items of the covenant are to be varied and the reasoning why I accept why the covenant should be varied below. It was agreed by the parties that references to ‘vendor’ is Council. I note again that Council neither opposes nor supports variations to the covenant.

71. Part 2, Item A restricts redevelopment to one main building and that building shall be single storey height. In relation to the single storey element, I accept that the restriction should be varied on the basis of previous variations at surrounding sites on The Esplanade, which are two storey dwellings and the reasonableness of the environmental impacts as detailed in response to the contentions. In relation to the ‘one main building’ element, I consider the proposed development to be consistent with that description. The proposal is for an attached dual occupancy. There is one building with a shared driveway into a basement that has been designed to present as a single dwelling. For the abundance of caution and acknowledging the singular reference of ‘dwelling’ in the restriction, for the same reasons, I find that if the dual occupancy were to be considered as more than one main building, it has been designed to appear as a single dwelling that is a commensurate scale to the other two storey detached dwellings in the streetscape. I accept this as sufficient reasoning to vary Item A. I find that the Item A should be varied on this basis and exercise Council’s function to vary the covenant pursuant to s 8.14(1) of the EPA Act and s 39(2) of the LEC Act.

72. Items B, C, D, E and F restricts construction methods or materials to those specified and/or as approved by the vendor. There is no objection or issue raised from Council in relation the main building materials, roof material, concrete raft foundations, and fence height and materials. The proposed materials and front fencing are consistent with the provisions of the CBDCP and as agreed by the expert planners in oral evidence, consistent with modern building practices. On that basis I find that the Court should exercise Council’s vendor approval for Items B-F pursuant to s 8.14(1) of the EPA Act and s 39(2) of the LEC Act.

73. Item G in relation to the front setback is met.

Contention 6 – Public Interest

74. Contention 6 refers to the public interest as encapsulated by submissions received by the public. In my view, whilst issues raised by the community might be in the public interest, an issue raised by a community member or resident isn’t, by default, an issue of public interest. Often, issues that are raised in community objections are private issues. These still form an important part of the matters for consideration pursuant to s 4.15(1)(d) of the EPA Act.

75. Notwithstanding, I address the issues raised in oral and written objections below. For the reasons I give under each issue and balancing these with the other considerations that I am required to also give weight to pursuant to s 4.15 of the EPA Act, the issues raised do not warrant refusal of the DA.

76. The original DA as lodged to Council on 11 December 2023 was notified on 22 December 2023 and renotified from 23 January 2024 to 20 February 2024. Eight submissions were received that raised objections, which have been provided to the Court. At the commencement of the proceedings, the Court conducted a site view and had the benefit of hearing oral evidence from six objectors and visiting various properties.

77. The written objections received throughout the DA process and during the hearing were tendered as evidence, which I have considered (Ex A and Ex 3). I address the concerns raised below.

• The restrictive covenant applies and should be enforced. This concern has been addressed throughout the judgment, from [19] and [70]. The view sharing assessment also considers the covenant.

• Inaccurate floor space ratio calculations, particularly in the basement. Drawing 5001 of the architectural plans demonstrates the areas that the parties agree should be included and excluded in the FSR calculations in accordance with the gross floor area (GFA) definition in the CBLEP. I accept these calculations to be correct. In relation to the laundry, I accept the agreed oral evidence of the planning experts that as it is not a habitable room in a basement, the modestly sized laundry areas are excluded under the GFA definition. I find that the other areas are correctly excluded from the calculations as they can be characterised as falling within the GFA exclusions including basement storage, basement vehicular access including access to car parking - which I accept is a reasonable manoeuvring area for a turntable, basement garbage area, basement service area, plant rooms and void areas. This includes the stairs, which have been calculated on one level and the void area excluded on the level above.

• Height and bulk. Request for further height reduction to 6.7m. I accept the evidence of the planning experts that the reduced height to 7m and proposed floor to ceiling heights are reasonable with consideration of the other two storey consents along The Esplanade that range from 7.2m – 6.7m, for the reasons set out in response to height and bulk and view loss from [30].

• Setbacks. The parties agree and the planner’s evidence, which I accept, is that the proposed development complies with all setbacks of the CBDCP.

• Insufficient landscaping and stormwater management / drainage. For the reasons set out under landscaping I accept that the variation to the CBDCP’s landscaping controls is reasonable. In relation to drainage, the stormwater experts provided oral evidence during the hearing and agreed that the proposed stormwater management system, including on site detention, will adequately manage stormwater.

• Relocation of the side entries to the front. There is no requirement to provide entries along the frontage. C1, E2.1 of the CBDCP requires entries to be readily apparent from the street, which I accept is achieved from the architectural plans.

• View loss. Addressed under view sharing further above from [40].

• Privacy. Addressed under privacy further above from [62].

• Overshadowing. The solar access diagrams provided in Ex B Tab 1 show that the proposed development provides the minimum three hours solar access to north facing habitable windows at the adjoining properties and 50% direct sunlight to principal private open space areas at 4 and 6 The Esplanade as required by C1 E3.3 of the CBDCP. The parties confirmed to the Court that the shadow diagrams depicted 21 June as required by the CBDCP. Without minimising the importance of the kitchen area to the long term residents of 4 The Esplanade, the location of the kitchen towards the middle of the property, facing the side setback, makes solar access to that kitchen difficult to maintain when balancing the competing interests of the objector and reasonable redevelopment at the subject site which complies with the suite of planning controls in the CBLEP and CBDCP.

• Contamination. Addressed under State Environmental Planning Policy (Resilience and Hazards) 2021 further below at [84].

• Construction over a sewer line. This is a post DA consent matter.

• Basement works should not be permitted and were removed from recent consents. There are no controls that prohibit basements and the Court is not able to impose requirements beyond the planning controls.

• Other current DA’s or construction in the area. The concerns raised are understandable but are not able to be considered in the assessment of this DA.

• Traffic and parking. The proposed development meets the parking controls in the CBDCP and the Court cannot impose more onerous requirements. The proposed dual occupancy is consistent with the objectives of the zone, where I acknowledge allow more traffic intensive developments, including schools, child care centres and places of public worship.

• Side fencing works and encroachment. CHD Design clarified during the hearing that no works are proposed to the existing side fences, reinforced by condition 5 at Annexure A. These are matters to be addressed between the properties separate from these proceedings.

• Geotechnical issues, groundwater and land stability. The DA has been accompanied by reports from qualified consultants in relation to geotechnical issues and acid sulfate soils that provide sufficient information at the DA stage. Appropriate conditions of consent at Annexure A have been included in relation to the basement and earthworks works, dilapidation reports and construction management. The extent of concrete piers that may exist on site is a matter for the demolition and construction process. An approval in relation to groundwater and the basement is required under the Water Management Act 2000, which has been included at condition 18A in Annexure A.

• Construction issues at 321 Victoria Place. These matters are not able to be considered in the assessment of this DA.

• Matters relating to SEPPs. These are addressed from [82].

• Aims of the CBLEP. The aims of the CBLEP are not matters for consideration.

Contentions relating to insufficient information

78. The parties agree that the further information has been provided as set out below.

1. An amended view loss assessment with a comparison between the existing views and proposed was provided with sufficient information.

2. The requirements of Water NSW can be addressed post development consent. I have imposed a condition of consent in relation to this requirement at 18A.

3. The expert engineers provided oral evidence regarding vehicular access, potential flooding and stormwater management. Given the location on Five Dock Bay/Parramatta River, the concern relates to sea level rise and storm surcharge management on the subject site and their basement. No issues were raised in relation to the adjoining sites regarding stormwater management.

4. In relation to chimneys, the Applicant provided information to show the outlet location on the ground floor. No further issues were raised.

Preconditions

79. The parties agreed that the preconditions to the grant of consent have been satisfied and set these out in oral submissions. I accept that the preconditions have been met as set out below.

80. Owner’s consent accompanied the DA (Ex A).

Water Management Act 2000

81. The DA was originally referred to Water NSW as integrated development, who sought further information (Ex 2, Tab 4). However, the Applicant confirmed during the proceedings that the DA did not elect to obtain the licence through the DA process. Accordingly, I accept that appropriate conditions of consent should be included in relation to any Water NSW approval that may be necessary for the basement design.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

82. Due to the lodgement date of the DA, State Environmental Planning Policy (Sustainable Buildings) 2022 does not apply and SEPP BASIX applies instead. The amended DA is accompanied by an amended BASIX Certificate which states that it meets the requirements of SEPP BASIX.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

83. Chapter 6 of SEPP BC applies to the site as it is located in the Sydney Harbour Catchment. The amended DA includes a Supplementary Statement of Environmental Effects prepared by Planning Ingenuity (SSEE) (Ex C) that specifically addresses the chapter and cll 6.3, 6.7, 6.8, 6.9, 6.10, 6.28, 6.32. I am satisfied that the amended DA addresses the provisions for the following reasons:

• The amended DA will have a neutral impact on the water quality entering the waterway as a result of the proposed stormwater management system, including on site water retention though OSD basins, which has been accepted by the stormwater engineers.

• The amended DA does not include clearing of riparian vegetation and proposes adequate stormwater management during construction and occupation as agreed by the stormwater experts so that there will not be any direct or indirect or cumulative adverse impacts on terrestrial, aquatic or migratory animals or vegetation or wetlands. The stormwater plans incorporate sufficient sediment protection, and the nature of use is broadly consistent with the existing residential use. I note that a separate approval will be required under the Water Management Act 2000.

• The site is not flood effected but is the lowest downstream property before the road, road reserve and then water body. The stormwater management plans demonstrate adequate release of stormwater to the waterbody and the type of use is maintained as residential which will not change the release of potential contaminants from the present situation.

• The amended DA provides adequate stormwater management during construction and operation that will not impact recreation land uses as demonstrated by the stormwater plans. The site is the furthermost downstream property closest to the water and as agreed by the engineering experts, manages its own stormwater impacts.

• As set out in the SSEE, the proposal has considered the Sydney Harbour principles. The development is modest and will have a similar impact to the existing residential property. There are no changes or impacts on the use or access of the foreshore and waterway area. The proposal maintains consistency with current residential uses.

• The site is mapped as being with the Rocky Foreshores and Significant Seagrasses area. There are no works proposed that will impact or change areas related to seagrass as the site is separated from the main foreshore by the road and road reserve.

State Environmental Planning Policy (Resilience and Hazards) 2021

84. Section 4.6 of SEPP RH applies to the amended DA in relation to contamination. Potential contamination of the site was also raised as an issue by objectors. I accept on the basis of the SEE, Memo of Council’s Senior Environmental Health Officer dated 15 November 2023, the history of site for residential use since the 1974 subdivision and the oral evidence of the planning experts that there is no evidence to indicate the site is contaminated.

State Environmental Planning Policy (Transport and Infrastructure) 2021

85. Section 2.48 of SEPP TI requires that written notice is provided to the electricity supply authority as the development is within 5m of an overhead electricity powerline. Ausgrid is the relevant authority and provided written conditions which have been included in Annexure A.

CBLEP

86. The contentions raised in relation to the clauses in the CBLEP have been resolved as set out under contention one in relation to height (cl 4.3), FSR (cl 4.4) and the restrictive covenant (cl 1.9A). No other clauses were raised as an issue. I am satisfied on the basis of the Class 1 application and amended DA that the below clauses have been relevantly considered or satisfied.

• I have had regard to the objectives of the R2 Low Density Residential zone (cl 2.3). The proposed attached dual occupancy is permissible with consent.

• Subdivision is permitted pursuant to cl 2.6. The proposed strata subdivision is not subject to the minimum subdivision lot size (cl 4.1(4)).

• Demolition is permitted pursuant to cl 2.7.

• The site meets the minimum lot size (450m²) and frontage (14m) requirements for attached dual occupancies pursuant to cl 4.1A, at 584m² and 14.02m.

• On the basis of the oral evidence of the engineers I accept that cll 5.21 and 5.22 in relation to flooding and climate change have been satisfied. The proposed stormwater management system, including the floodgate and crest into the basement, are agreed by the engineering experts to provide adequate flood and stormwater management protection to the site, adjoining properties and water way.

• I accept that cl 6.1 in relation to acid sulfate soils has been satisfied as demonstrated by the Acid Sulfate Soils Management Plan prepared by Morrow Geotechnics dated 1 November 2023 and the memorandum from Council’s Senior Environmental Health Officer.

• I have considered cl 6.2 earthworks and accept that the provisions are met on the basis of the SEE and Geotechnical Report prepared by Morrow Geotechnics dated 17 August 2023 and the Waste Management Plan.

• For the reasons set out in response to SEPP BC and based on the reasoning in the SEE, I am satisfied that the provisions of cl 6.3 have been met and the proposed development has been designed to avoid adverse environmental impacts to environmentally sensitive land.

• I have considered the Aircraft Noise Assessment report prepared by Acouras Consultancy dated 21 August 2023 and accept that the provisions of cl 6.13 aircraft noise have been addressed by the recommendations and included in the agreed conditions of consent at Annexure A.

Conclusion

87. The parties agree that the contested issues have all been resolved. I have also considered these issues and found them to have been satisfactorily addressed by the amended DA. The concerns raised by the objectors have been carefully considered and on balance with the other matters for consideration under s 4.15 of the EPA Act, do not warrant refusal of the development for the reasons I have detailed. The amended DA satisfies the jurisdictional preconditions.

88. I therefore conclude that development consent should be granted subject to the conditions agreed by the parties and the conditions imposed by the Court in relation to privacy and water licencing.

Orders

89. The Court orders that:

1. The appeal is upheld.

2. Pursuant to s 39(2) of the Land and Environment Court Act 1979 and s 8.14(1) of the Environmental Planning and Assessment Act 1979, the restriction as to user in Part 2, Item (A) of registered s 88B instrument, dealing number DP250661, is varied so that it does not restrict the construction of a two storey attached dual occupancy authorised by the development consent granted by Order 3.

3. Development Application 2023/0241 for demolition of existing structures and construction of a two storey dual occupancy with strata subdivision at 5 The Esplanade Drummoyne is determined by the grant of consent subject to the conditions set out in Annexure A.

4. The exhibits are returned except for 1, A and B.

S Porter

Commissioner of the Court 

Annexure A

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Decision last updated: 06 December 2024