Cheng v Waverley Council

[2016] NSWLEC 1289

Land and Environment Court

New South Wales

Medium Neutral Citation:	Cheng v Waverley Council [2016] NSWLEC 1289
Hearing dates:	20 June 2016
Date of orders:	12 July 2016
Decision date:	30 June 2016
Jurisdiction:	Class 1
Before:	Pearson C
Decision:	See paragraph [41]
Catchwords:	DEVELOPMENT MODIFICATION: Demolition of existing dwelling and construction of new dwelling – Height – Setbacks – Amenity impacts – Impacts on views
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Waverley Local Environmental Plan 2012
Cases Cited:	Tenacity Consulting v Warringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Cheng Cheng (Applicant) Waverley Council (Respondent)
Representation:	Counsel: Ms N Hammond (Applicant)   Solicitors: Mr H Lu, Luminous Legal (Applicant) Ms E Whitney, Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2016/154117 (Formerly 10210 of 2016)
Publication restriction:	No

Judgment

1. On 25 November 2015 the Waverley Development Assessment Panel, as delegate of the respondent Council, granted development consent for the demolition of an existing dwelling and construction of a new part two, part three storey dwelling and swimming pool at 35 Portland Street Dover Heights (the site).

2. Development Consent No 252/2015 was subject to conditions, including Condition A.2, which required the following design changes:

The proposal shall be amended as follows:

(a) To comply with the objectives of the Waverley DCP 2012, and to preserve city views of the adjoining premises to the east, the overall height of the development is to be lowered to Reduced Level RL71.3 (AHD).

(b) To comply with the objectives of the Waverley DCP 2012, both (north and south) side setbacks of the rear three storey section of the development (approximately 11.18m in length) are to provide a setback of 1200mm.

(c) To preserve the amenity of the adjoining sites, 1.8m high obscure glass privacy screens are to be installed on both side elevations of the rear western decks at all floor levels.

(d) The pool copping level is not to exceed Reduced Level RL61.4 (AHD).

(e) The height of the front boundary fence is to match the level of the front boundary fence of 33 Portland Street and the proposed covered walkway (3m in height and 6.9m in length) is to be deleted.

(f) To preserve the acoustic amenity of the adjoining premises to the north at 33 Portland Street, the proposed plant room housing the air conditioning condenser units and the hot water units is to be relocated so as not to be positioned directly opposite the south facing windows of 33 Portland Street.

The amendments are to be approved by Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

3. On 25 January 2016 the applicant lodged an application under s 96(1A) of the Environmental Planning and Assessment Act 1979 (the Act) to modify development consent DA No 252/2015 (DA/252/2015/A):

To have Conditions A.2 deleted from the DA approval and to have glass balustrades installed on the flat roof & a skylight replaced by a manhole at level 1.

4. The plans submitted with the modification application (ex B) show a roof terrace, 85sqm in area, on the western side of the dwelling, accessed by a manhole, with clear toughened glass balustrades.

5. On 9 March 2016 the applicant lodged an appeal pursuant to s 97AA of the Act against the deemed refusal of the modification application. The matter was the subject of a conciliation conference pursuant to s 34AA of the Land and Environment Court Act 1979 (the Court Act) on 20 June 2016. Agreement was reached on some issues but not on all, and the conciliation was terminated, and in accordance with s 34AA(2)(b)(i) of the Court Act, proceeded to hearing.

The site and locality

6. The site is on the western side of Portland Street, and falls from the front boundary to the rear, having a fall of approximately 6m, and falls across the site from north to south. The proposed dwelling has a driveway and garaging for two vehicles, and lounge, dining, kitchen and living room at street level (ground level); four bedrooms and bathrooms on level 1; and home theatre, study and rumpus room on the basement floor. There is a 2.4m deck on each level at the rear (western) side of the building.

7. Adjoining the site to the north is a newly constructed pair of part two and part three storey semi detached dwellings with garaging and swimming pools (31-33 Portland Street). Adjoining the site to the south is an older style part two and part three storey dwelling (37 Portland Street). The locality is characterised by large two and three storey dwelling houses.

Issues

8. The applicant was granted leave to amend the modification application to delete the proposed roof terrace and manhole access. The applicant accepts conditions A.2(b) and (d). The parties agree to the following amendments:

1. condition A.2(c) to require 1.6m high obscure glass privacy screens on both side elevations of the rear western decks, extending 1.2m for the decks on the ground level and level 1, and for the full depth of the basement level;

2. condition A.2(e) to require the front boundary fence and walkway to match that provided at 31-33 Portland Street; and

3. condition A.2(f) to require acoustic attenuation of the airconditioning condenser units and hot water units to ambient background level, or relocation.

9. The parties did not reach agreement on the proposed deletion of condition A.2(a). The only issue requiring resolution by the Court is whether the overall height of the dwelling should be lowered from RL72.0 to RL71.3 AHD.

10. That issue is addressed in the Council’s first two contentions (ex 1):

1. Height: the proposed excessive height of the building will unreasonably impact on iconic views enjoyed by adjoining properties to the east of the site and will result in visual and bulk related impact on adjoining properties to the north and south:

1. the dwelling has an overall maximum building height of 11.32m, in excess of the 8.5m provided in cl 4.3 of the LEP, with no adequate justification provided to support such a significant variation to the height control;

2. the proposed building is not consistent with the objectives in cl 4.3(a) and (d) as it will manifest in loss of iconic views and result in development incompatible with the height, bulk and scale of the existing character of the locality;

3. the proposal exceeds the maximum overall building height of 7.5m for dwelling houses with a flat roof form under section 1.1.1 of the DCP and is inconsistent with objectives (b) and (c) of section 1.1 of the DCP; and

4. the approved development already exceeds the maximum building height limits and has a gross floor area of 356sqm resulting in a floor space ration (FSR) of 0.62:1 which exceeds the maximum provided in cl 4.4 of the LEP of 0.5:1; and

2. View loss: the modification application should be refused due to its unreasonable impacts on iconic views:

1. the proposal is inconsistent with the view sharing principle in Tenacity, and will result in loss of iconic views; and

2. is inconsistent with objectives (a) and (b) and does not comply with controls (b) and (c) under section 1.10 of the DCP in relation to minimising impacts on existing views enjoyed from residential development and encouraging view sharing as a means of equitable access to views from private dwellings.

Planning controls

11. The site is zoned R2 Low Density Residential under the Waverley Local Environmental Plan 2012 (the LEP). The objectives of the zone are:

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

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

12. Clause 4.3 of the LEP provides a maximum building height of 8.5m. The objectives of the height development standard are:

(a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties,

(b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth,

(c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land,

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

13. The Waverley Development Control Plan 2012 (the DCP) applies to the site. Section C1 Dwelling House, Dual Occupancy, Secondary dwelling, Semi-Detached Dwelling and Terrace Development provides the following objectives:

(a) To ensure that the scale of lower density residential accommodation is appropriate for allotment sizes and other dwellings in the vicinity.

(b) To ensure that lower density residential accommodation does not significantly detract from the amenity, privacy and views of other dwellings and public view corridors.

(c) To ensure that Council has regard to the principles of ecologically sustainable development when assessing applications.

(d) To ensure that new development and alterations and additions to existing lower density residential accommodation is sympathetic in bulk, scale and character with other dwellings in their vicinity.

(e) To encourage lower density residential accommodation to have high design standards and are built in accordance with the objectives and controls of this Part.

14. Section 1.1 Height provides:

The maximum building height and maximum wall height are two of the most important design elements that influence the overall appearance of residential buildings and character of a streetscape. The maximum building height standards are identified by Clause 4.3 and the Height of Buildings Map in WLEP 2012.

Achieving the maximum building height may not be appropriate in all cases and should not be considered as prescribed or allowable regardless of circumstance. Amenity or streetscape impacts may mean that a lower height or additional setbacks are warranted. Therefore nothing in this part restricts Council’s ability to require the height of a building to be less than the maximum height as specified in the LEP.

…

Objectives

(a) To provide appropriate building heights for flat or pitched roof forms for lower density residential accommodation.

(b) To ensure the height and scale of development relates to the topography and street character.

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

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

(e) To minimise loss of views from and overshadowing of public places.

(f) To ensure development in excavation areas does not add to the overall visual bulk of the dwelling.

1.1.1 Flat roof dwellings

Flat roof dwellings can potentially have a greater impact on neighbouring properties than pitched roof dwelling designs. As such, the proposed height of a flat roof dwelling must not preclude the achievement of standards relating to overshadowing, building orientation topography, privacy and views as specified elsewhere in this DCP.

Controls

(a) For a building with a flat roof the maximum overall building height is 7.5m above existing ground level (refer to Figure 1).

15. Section 1.8 Visual and Acoustic Privacy has the following objectives:

(a) To ensure that new developments and / or alterations and additions to lower density residential accommodation does not unreasonably impact upon existing residential or other properties due to unacceptable loss of privacy or generation of noise.

(b) To minimise the impact of roof terraces on adjoining properties.

16. Section 1.10 Views provides:

Objectives

(a) To minimise the impact on existing views and vistas enjoyed from existing residential development and from the public domain.

(b) To encourage view sharing as a means of ensuring equitable access to views from private dwellings

(c) To maintain views from public places of landmark or iconic features.

Controls

(a) Existing views and vistas available from the public domain, including but not limited to ocean, harbour, beach, city and parks views are to be maintained where possible by the design of buildings.

(b) Existing views of landmark or iconic features from the public domain (such as Sydney Harbour, Opera House, Harbour Bridge, Bondi Beach) are to be maintained and where possible, enhanced. In some circumstances, complying with maximum development controls may not be achievable if an iconic view is impeded.

(c) Lower density residential accommodation is to be designed and sited so as to enable a sharing of views with surrounding dwellings particularly from habitable rooms and decks. Where views are enjoyed by a neighbouring property across a proposed terrace, balcony or deck, it may be appropriate to exclude a privacy screen to enable the view to be maintained.

17. Section 1.10 states that “This Part should be read in conjunction with the NSW Land and Environment Court Planning principle based on Tenacity Consulting v Warringah [2004] NSWLEC 140 which provides general principles for the assessment of views and view sharing”.

Evidence

18. The conciliation conference commenced on site with a view of the subject property, 33 Portland Street and 37 Portland Street, and 2 Portland Street, the dwelling opposite the site on the eastern side of Portland Street. Submissions were made on site on behalf of the owners of 2 Portland Street and 37 Portland Street, and by the owner of 33 Portland Street.

19. Written submissions made to the Council in response to its notification of the modification application are in evidence (ex 2, tab 3). The concerns of the objectors, as expressed on site and in the written submissions, are in relation to height, being loss of light and visual space and impacts on privacy for 37 Portland Street, and loss of views from 2 and 4 Portland Street; inadequate setbacks; FSR exceedance; the level of the pool and boundary fence, including loss of privacy for 33 Portland Street; and loss of privacy arising from use of the roof terrace.

20. The parties consented pursuant to s 34(12) of the Court Act to evidence of the site view, and discussions during the conciliation conference, forming part of the evidence in the proceedings.

21. Expert evidence was provided on behalf of the Council by Mr Stephen Layman (planning), and on behalf of the applicant by Mr Lewis Adey (planning) and Dr Richard Lamb (visual impacts and views). The experts provided a joint report (ex 3) and gave oral evidence. A Views Impact Assessment prepared by Dr Lamb in support of the original development application is in evidence (ex C).

Consideration

22. The application was made under s 96(1A) of the Act, which enables the modification of a development consent if the consent authority is satisfied that the proposed modification “is of minimal environmental impact” (s 96(1A)(a)). The experts agreed that the application should have been made under s 96(2) of the Act, and the matter proceeded on that basis. Section 96(2) of the Act enables modification of a development if the consent authority is satisfied that “the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted”, and if the application has been properly notified and any submissions are considered. Section 96(3) provides that in determining an application for modification of a consent, the consent authority must take into consideration such of the matters referred to in s 79C (1) of the Act as are of relevance to the development the subject of the application.

23. There is no contention that the development to which the consent as modified relates is not substantially the same as the development for which consent was originally granted, and no basis on the evidence for a finding that that threshold requirement is not satisfied.

24. In responding to the Council’s first contention relating to height, the experts agreed (ex 3, p 2) that the approved development exceeds the LEP building height control of 8.5m and the DCP maximum wall height control of 7.5m. Exhibit 4, plans for the north and south elevations (Drawing Nos AD-HL-S96-03 and 02) marked up by Mr Layman during the course of his oral evidence and agreed by Mr Adey, shows that at RL72.0 AHD the proposed building meets the LEP building height and DCP wall height at the street for both elevations; exceeds the 7.5m DCP wall height from close to the front of the building on the north elevation and approximately one third of the depth of the building on the south elevation; and exceeds the 8.5m LEP building height at approximately half way on the north elevation and south elevation; with the exceedance increasing to the rear of the building.

25. The experts disagreed on the extent of the impact on views resulting from the height. Mr Adey’s evidence was that heights are inconsistent in the street, and the proposed height is generally compatible with the height, bulk and scale of the existing character of the locality; the part of the building that exceeds the height control is not readily visible from the street and has no impact on views; the proposed height is consistent with similar recently approved and constructed developments in the immediate vicinity on the lower side of Portland Street; and the height proposed by Council is arbitrary and has no discernible impact on views or streetscape but will have a significant impact on the amenity of the building, as 34 Gilbert Street immediately below the site is higher than any other building in its immediate vicinity. Dr Lamb’s evidence was that the proposal as viewed from the street is compatible with the height, bulk and scale of buildings in the streetscape on the low side of Portland Street and is substantially below the height control at the street, and based on the likely effect of the height of the building on views from the street, the breaches of the height control are of no consequence. Mr Layman’s evidence was that the reduction in maximum height of the parapet by 700mm is not onerous and can easily be achieved by simply lowering the building, or alternatively adjusting ceiling heights, for example reducing the bedroom ceiling height on level 1 by 100-200mm; and the proposal would still be non-compliant but less so, and would be consistent with the adjoining development at 33 Portland Street.

26. Mr Adey’s opinion was that the acceptability of the proposed height is dependant only on the impact of that height on views from neighbouring properties, and the proposed height is otherwise acceptable in terms of streetscape, character of the area and bulk and scale (ex 3, p 3). In oral evidence Mr Adey maintained his opinion that the 700mm increase has no material impact on the neighbours including 37 Portland Street, given the setbacks, and will not overshadow or affect views from that property. Mr Layman disagreed, and considered that the additional height would overshadow, and have a visual impact.

27. In responding to the Council’s contention 2, the experts agreed that there is no significant view loss to 4 Portland Street, or from the public domain. The most affected property is 2 Portland Street.

28. Mr Layman’s evidence was that the impacts were on views from the living level and associated balcony and roof deck. In his opinion, filtered water and foreshore views from the deck would be devastated by the proposal, and those from the balcony and living area would be significantly adversely affected, however those views would be lost by a complying development at that level; standing views from the bedroom level would not be affected; and there is limited impact on Sydney Harbour Bridge depending on angle of view and the state of tree foliage. Overall, his assessment was that the impact of the proposal is moderate, and a more skilful design would give the applicant the same development potential and amenity and reduce the impact on views of neighbours. Dr Lamb was of the opinion that any reasonable building envelope that complies with the height control at the front will cause view loss for 2 Portland Street at the lower living level, for example the level of the deck over the garage; views that are partly visible filtered through existing vegetation in the public domain would be lost in any realistic development scenario; the iconic items of the views, for example the Harbour Bridge, would not be significantly affected; there is minimal advantage in relation to view loss in lowering the building to the arbitrary level preferred by the Council; there would be some loss of views of the lower parts of some buildings in the CBD; and taking into account Tenacity the height of the proposed building at the front is likely to cause an impact of minor significance to 2 Portland Street, and restricting the height of the proposal to an arbitrary and lower height is not warranted.

Findings

29. It was common ground between the experts that because of the topography the relevant setting for consideration of the height of the building is at the street. Dr Lamb provided photomontages based on Council photographs taken from the steps between the roof deck over the garage and the living room level of 2 Portland Street (figures 1, 3 and 4 in ex C). Those photomontages are consistent with the view, which included the view from the northern and southern sides of the living room level, and the assistance provided by height poles erected on the site. Based on that evidence, I accept that reduction of the building height to RL71.3 AHD would provide more extensive views of CBD buildings from the living room level than a height of RL 72 AHD. From the southern side of the living room level, the street tree in front of the site limited the views of the Opera House and Harbour Bridge. Those views are retained on the northern side of 2 Portland Street, over 31-33 Portland Street. The street tree is located underneath overhead power lines. I accept the evidence of the owner of 2 Portland Street that the street tree is regularly pruned, and that the views of the Opera House and Harbour Bridge obtained from the living room level vary according to the foliage on the tree and wind.

30. Plate 11 of Dr Lamb’s Views Impact Assessment (ex C) is a photograph from the rear deck of the existing dwelling on the subject site, looking north west. That is consistent with the view, which confirmed Mr Adey’s evidence as to the intrusion of 34 Gilbert Street into the view available of the CBD, Opera House and Harbour Bridge from that location. Mr Layman’s evidence that the level of that existing deck is approximately 1.07m lower than the level of the deck at the rear of the ground level at the lowered height required by condition A.2(a) was not contested, and I accept it.

31. The experts’ assessment of the impact on views proceeding in accordance with the four assessment steps adopted by Roseth SC in Tenacity, in the context of a local environmental plan which provided that “development is to allow for the reasonable sharing of views”:

25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

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

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

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

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

32. Dr Lamb’s evidence was that taking into consideration the application of step 3 of Tenacity, the height of the building at the front is likely to cause an impact of minor significance to 2 Portland Street, which would not require consideration of the question of reasonableness to be answered in step 4. Mr Layman’s assessment was that there is a significant impact on views to the CBD skyline which are iconic, and the impact is at least moderate, approaching severe. From time to time the Opera House would be visible from the southern side of the living area level. Mr Adey’s evidence was that 34 Gilbert Street has a moderate impact on the current dwelling at the subject site and the redevelopment of the site is an opportunity to achieve view sharing to get a good view of the city skyline. There is an opportunity to get view sharing for the subject site and equitable views for the properties behind.

33. With the benefit of the view, and Dr Lamb’s photomontages, I find that the views from 2 Portland Street affected by the proposal are standing views from the living area of the city skyline, and, depending on the influence of the street tree, the Opera House and Harbour Bridge, with a lesser impact from the lower deck above the garage. Whether or not CBD building views can be regarded as “iconic”, I accept the evidence of the owner of 2 Portland Street that the city skyline views are valued. Those views are obtained from the living area of the dwelling, and in my view, depending on the influence of the street tree in front of the site, the impact of the proposal could be regarded as at least minor and probably moderate. I accept that at street level the proposed building complies with the LEP building height and DCP wall height controls. To the extent that the proposal could on that basis, and leaving aside the non-compliance through the depth of the building, be regarded as a “complying” proposal, the issue then at step 4 of Tenacity is whether a more skilful design could provide the applicant with the same development potential and amenity, and reduce the impact on the views of 2 Portland Street.

34. The applicant relies on the impact on views of the building at 34 Gilbert Street to support the submission that reasonable view sharing requires the additional height proposed. The view from the deck of the existing dwelling on the site was of the extended city skyline, including the CBD, the Opera House, and Harbour Bridge, including the harbour waters. Dr Lamb’s Plate 11 (ex 3, p 4) confirms the observation on the view that 34 Gilbert Street is visible, and obscures part of that view to the south of the Opera House and Harbour Bridge.

35. I am not persuaded that the impact of 34 Gilbert Street, which is a single building with a pitched roof, on the extensive views available from the existing deck at the subject site could be regarded as sufficiently significant as to warrant the reduction in views from 2 Portland Street. That conclusion is reinforced when the additional 1.07m height of the deck of the proposed ground level with compliance with the Council’s condition, which would reduce the impact of 34 Gilbert Street in the view, is considered. The proposal does not achieve the objectives (a) or (b) of section 1.10 of the DCP: it does not minimise the impact on existing views from 2 Portland Street, or encourage view sharing to ensure equitable access to views. While the proposal is compliant with the LEP building height and DCP wall height limits at street level, control (b) of section 1.10 makes it clear that complying with maximum development controls may not be achievable. That approach is reinforced in relation to height generally, with the note in section 1.1 that achieving maximum building height may not be allowable regardless of circumstances, and in the context of a flat roof dwelling such as that approved on the site, section 1.1.1 noting that such dwellings can have a greater impact than pitched roof designs.

36. The applicant submits that the Council’s condition requiring a maximum height of RL71.3 AHD is arbitrary. I do not agree, for two reasons. First, Mr Adey relied on his Table of building heights for the properties at 29 - 51 Portland Street (ex 3, p 3) in support of his evidence that heights are inconsistent in the street and the proposal height is generally compatible with the height, bulk and scale of the existing character of the locality. I am not persuaded that Mr Adey’s Table in fact supports that proposition: having regard to the net height at street, regarded by the experts as the relevant location, and the differences between the pitched and flat roof designs, the proposal at 5.80m is higher than the other properties in the immediate vicinity other than those with a pitched roof (37, 41, 43, 45); and slightly higher than those furthest away, 49 and 51 Portland Street.

37. Secondly, the report prepared by Council officers (ex 2, tab 8) approached the assessment on the basis that there was no justification for the proposed building to be higher than 31-33 Portland Street and that the building should also maintain the same setbacks, and that the actual view loss was quantified by that building as an existing benchmark. The report stated (ex 2, pp86-87) :

However, following site inspections, it is considered that the view impacted upon would not be unreasonable for these sites, and in particular 2 Portland Street, provided that the building is reduced to RL71.3 (AHD) so as to match the height of the recently approved and constructed dwellings at 31-33 Portland Street thereby generally maintaining the iconic and panoramic views of the city skyline and Harbour Bridge.

38. The approach adopted by the Council officers, taking as a benchmark the recently approved and constructed dwellings at 31-33 Portland Street, is not in my view arbitrary, but rather is consistent with objectives (a) and (d) of the height development standard in cl 4.3, in particular (d), for compatibility with the existing character of the locality. It is consistent with objective (c) of section 1.1 of the DCP, in particular in the context of the provision in section 1.1.1 relating to the potentially greater impacts of flat roof dwellings. It is also consistent with objectives (a) and (b) of section 1.10 of the DCP, in particular in ensuring equitable access to views from private dwellings.

Conclusion

39. For the above reasons, I am not satisfied that it is appropriate to approve the modification sought by the applicant to delete condition A.2(a) and increase the height of the approved building from RL71.3 AHD to RL72 AHD. Conditions A.2(b) and (d) are to remain, and conditions A.2(c), (e) and (f) are to be amended, as agreed between the parties.

40. Directions will be made in consultation with the parties for provision of amended plans, and amended conditions in the form adopted by the Court in making orders in appeals under s 97AA of the Act for modification applications, namely a document comprising new conditions added and existing conditions to be altered or deleted, and a consolidated set of conditions of development consent incorporating all conditions proposed to apply to the modified proposal as approved. On receipt of those documents, final orders will be made in chambers.

41. Addendum made on 12 July 2016

In accordance with the terms of paragraph 40 of my judgment of 30 June 2016, on 12 July 2016 the parties provided amended plans and amended conditions of consent. I am satisfied that the amended plans and conditions of consent accord with my findings and accordingly I make orders as follows:

1. The appeal is upheld;

2. The Modification Application DA/252/2015/A to modify Development Consent No 252/2015 for the demolition of an existing dwelling and construction of a new part two, part three storey dwelling and swimming pool at 35 Portland Street Dover Heights is determined by approving the modifications as set out in Annexure A;

3. As a consequence of order (2), Development Consent No 252/2015 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and

4. The exhibits, other than Exhibits 1 and B, are returned.

Linda Pearson

Commissioner of the Court

Note: Addendum (Final Orders) made on 12 July 2016.

154117.16 - Annexure A (10.2 KB, pdf)

154117.16 - Annexure B (90.6 KB, pdf)

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Decision last updated: 13 July 2016