D'Alterio v Newcastle City Council

[2017] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation:	D’Alterio v Newcastle City Council [2017] NSWLEC 1058
Hearing dates:	23, 24 January 2017
Date of orders:	15 February 2017
Decision date:	15 February 2017
Jurisdiction:	Class 1
Before:	Dickson, C
Decision:	1. The appeal is upheld; 2. The Court determines to vary the Section 88B Restriction on the use of Lot 42 DP1160807 3. Consent is granted to Development Application No. DA/2016/00159 for a new two storey dwelling, associated swimming pool and site works at 46 Kilgour Avenue, Merewether (Lot 42 DP1160807), subject to the conditions in Annexure A including the following additional condition: a. No structures, plant or the like are to exceed the maximum roof RL of 29.590 shown on the architectural plans prepared by Fearon Hay Architects, detailed in condition 1 of this consent. 4. The exhibits are returned with the exception of 1, 3, 9, A, and B.
Catchwords:	DEVELOPMENT APPEAL: non- compliance with height required by title restriction imposed by subdivision – intent of restriction on title – role of Section 88b instrument in the proceedings – effect of proposed development on the significance of the heritage item – impact on views from neighbouring properties.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Conveyancing Act 1919 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy 55: Remediation of Land State Environmental Planning Policy 71: Coastal Protection
Cases Cited:	Tenacity Consulting v Warringah [2004] NSW LEC 140 Zhang v Canterbury City Council [2001] NSWCA 167 Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 Arnott v Sydney Council [2015] NSWLEC 1052 Takchi v Hornsby Shire Council [2007] NSWLEC 597 Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004]HCA59 Chehab v Canada Bay Council [2002] NSWLEC 220
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Francis D'Alterio and Cornelia D'Alteri (Applicant) Council of the City of Newcastle (Respondent)
Representation:	Counsel: A. M Pickles SC (Applicant) R O’Gorman Hughes (Respondent)   Solicitors: G Elsworthy, Elsworthy Solicitors (Applicant) J Marshall, Newcastle City Council (Respondent)
File Number(s):	2016/ 00282693
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal was lodged against the refusal by Newcastle City Council of development application 2016/00159. The application sought approval to erect a two storey dwelling, swimming pool and associated site works on land described as Lot 42 DP1160807, 46 Kilgour Avenue Merewether (the Site).

2. The matter commenced by way of a conciliation conference. A number of objections were lodged to the development application, and at the commencement of the proceedings the objectors were given the opportunity on site to express their concerns. Subsequently a view of the site, and adjoining properties was undertaken to assess their concerns, in particular in relation to view loss from their properties. Conciliation was unsuccessful and the proceedings were dealt with as a hearing. The parties consented to the admission of evidence given during the conciliation conference in the hearing (s 34AA(2)(b)(ii) LEC Act).

3. In hearing the appeal the role of the Court (cl 39 of the Land and Environment Court Act 1979 (LEC Act)) is to assess and determine the development application based on the evidence in the proceedings and the amended plans.

4. It agreed between the parties that the key issues in dispute are:

1. Whether the effect of proposed development on the significance of the heritage item is acceptable;

2. Whether the proposed inconsistency with the building height restriction contained in the relevant Deposited Plan and Section 88b instrument is justified; and

3. Whether the view impacts from the proposal are reasonable.

The site and its context

5. The subject site is an irregular battle axe block, with access off the end of Kilgour Avenue. The site configuration can be seen in the following.

6. The site is currently vacant and slopes from the western boundary to Kilgour Avenue, and has cross fall from Bathers Way to the common boundary of the site with Barrymore. The site is located in a sensitive coastal location and is located adjacent the Bathers Way public domain works.

7. Relevantly the site is located on the cliff top above Bar Beach on a prominent rise in topography. As a result of this elevation, the subject site and surrounding properties gain substantial access to views both inland across the suburb of Merewether to Newcastle, and east to Bar Beach, the headland and the surrounding rock shelf. To the west of the site views are to Merewether beach, its headland and the Dudley headland.

8. The two relevant adjoining properties in relation to the matters in dispute between the parties are:

1. 2A Ocean Street which adjoins the sites western boundary and is a 4 storey residential flat building of 12 units; and

2. ‘Barrymore’ - a heritage item of local significance (listed on the NSW Heritage inventory as Brynhfryd).

Background:

9. The subdivision that gave rise to the subject site is relevant to the proceedings. Development approval was obtained in 1999 for the subdivision of the then 44 Kilgour Avenue, which contained the Barrymore residence.

10. The subdivision application was approved by Council and the consent contained the following condition:

‘An appropriate restriction on the use of the land being registered against the title of proposed Lot 42 under Section 88b of the Conveyancing Act, restricting the building envelope within the lot generally to the area identified as (B) on the submitted plan and subject to the height not exceeding the existing eave height of the adjacent dwelling (Barrymore), such instrument is to be registered with the Land Titles Office and is to provide that the restriction on the use of the land is unable to be relinquished, varied or modified without the concurrence of the Newcastle City Council.

Reason: to minimise the possibility that any future building on the land may obscure the view of or unreasonably detract from the appearance of the existing historic dwelling (Barrymore).

11. Proposed Lot 42 in the subdivision is the site of the proposed development the subject of the appeal.

12. An extract of the approved plan of subdivision (below) identifies the location of the building envelope as ‘B’. It is relevant to note that this is located 3m to the west of the front face of the sunroom of Barrymore.

13. The subdivision was registered with the Land Titles Office in 2011. The executed title for Lot 42 (the subject site) included a restriction on the use of the land in relation to height in the area marked on the plan as ‘D’, but did not incorporate any restriction on the location of the building envelope (Exhibit 4). The registered restriction in relation to the area marked as ‘D’ is:

‘No part of the building shall exceed a height of RL 28.22 on Australian Height Datum (AHD)’.

14. The authority empowered to release, vary or modify the restriction is the Council of the City of Newcastle.

15. As a result whilst the condition in the subdivision application called for the creation of a building envelope on the site, the combined effect of the Deposited Plan and the 88B instrument is only to establish a height restriction on the site within the area marked as ‘D’ (refer below):

Extract of Deposited Plan (Exhibit 4)

16. In support of the original subdivision application, the then applicant, prepared a number of designs for Lot 42 (the subject site) to demonstrate to Council that a dwelling house on the lot was feasible and could be designed in compliance with Councils controls. These earlier designs were appended to the statement of evidence of Mr Warne and referred to in the proceedings collectively as the ‘Bale’s designs’ in reference to the then owner.

Planning Controls:

17. Section 79C(1)(a) of the Environmental Planning and Assessment Act (the Act) requires the consent authority, in this case the Court, to consider the provisions of any environmental planning instrument, any development control plan, any planning agreement, relevant regulations, and any coastal management plan that may apply to the land to which the development application relates. Amongst other things, s 79C also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.

18. In accordance with State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 a certificate has been submitted with the development application and the relevant requirements incorporated in the proposal. The proposal is considered to satisfy the requirements of this policy.

19. State Environmental Planning Policy 55 - Remediation of Land (SEPP 55) applies to the site. It is agreed between the parties that the proposed development is satisfactory and meets the requirements of Clause 7 of this policy.

20. State Environmental Planning Policy 71 – Coastal Protection (SEPP 71) applies to the site. There is no contention raised between the parties in relation to the requirements of this policy.

21. Newcastle Local Environmental Plan 2012 (LEP 2012) applies to the site. LEP 2012 has the following aims relevant to this appeal (cl 1.2(2)):

(a) to respect, protect and complement the natural and cultural heritage, the identity and image, and the sense of place of the City of Newcastle

…

(f) to facilitate the development of building design excellence appropriate to a regional city

22. Pursuant to LEP 2012 the site is zoned R2. The following objectives of the R2 zone are relevant to the appeal:

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

…

• to accommodate a diversity of housing forms that respects the amenity, heritage and character of surrounding development and the quality of the environment.

23. Relevant to the subject matter of the appeal cl 1.9A of LEP 2012 addresses the suspension of covenants, this is reproduced below.

1.9A Suspension of covenants, agreements and instruments

(1) For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

(2) This clause does not apply:

(a) to a covenant imposed by the Council or that the Council requires to be imposed, or

…

This clause has the effect of not suspending a covenant imposed by Council.

24. Part 4 of LEP 2012 contains principal development standards with clause 4.4 Floor Space Ratio (FSR) prescribing a maximum FSR of 0.75:1 for the site, and at clause 4.5 a maximum building height of 8.5 m. The development complies with these development standards.

25. Clause 5.5: Coastal Development applies to the site. It is agreed between the parties that the proposed development is satisfactory and meets the requirements of this clause.

26. The site is mapped as a heritage item. As a result cl. 5.10 Heritage conservation applies to the site. The objectives of cl 5.10 of LEP 2012, ‘Heritage Conservation’ at sub-cl (1), are to conserve the environmental heritage of the City of Newcastle and the heritage significance of heritage conservation areas, including associated fabric, setting and views.  The consent authority must, before granting consent in respect of a heritage conservation area, consider the effect of the proposed development on the heritage significance of the item, at sub-cl (4).

27. The following definition in the dictionary of LEP 2012 is relevant:

building height (or height of building) means:

(a) in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building, or

(b) in relation to the RL of a building—the vertical distance from the Australian Height Datum to the highest point of the building,

including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like..

28. The Newcastle Development Control Plan 2012, (DCP 2012) applies to the proposal. The clauses of DCP 2012 relevant to the appeal are predominately in Section 3: Single Dwellings and Ancillary Development and Section 5.05: Heritage Items.

29. In contention between the parties are the performance criteria and controls in DCP 2012 in relation to setbacks (cl3.02.04), landscape (cl 3.02.05), view sharing (cl3.02.09), curtilage to the heritage item (cl 5.05.05) and Development in the vicinity of the heritage item (cl5.05.06).

30. Section 3 of DCP 2012 is structured in such a way that each of the controls has an acceptable solution and performance criteria. The performance criteria are relevant to consideration of proposals that do not meet the acceptable solutions, as defined in the DCP:

Acceptable Solutions

The acceptable solutions provide a certain outcome of achieving compliance with Council controls for this section. To achieve the acceptable solution the applicant must demonstrate that they have satisfied the required control/s within each section. Any variation from the acceptable solution will mean the application will be required to meet the performance criteria for that section and the application will become a performance based assessment.

31. The relevant provisions of DCP 2012 are a mandatory consideration under s79C(1)(a)(ii) of the Act and its provisions are a fundamental element in, or a focal point to, the decision-making process, but are not determinative (see Zhang v Canterbury City Council [2001] NSWCA 167). However, Section 79C(3A) of the Act mandates a flexible approach to the application of the controls in DCP 2012. As noted by Moore, SC in Trinvass Pty Ltd v Council of the City of Sydney [2015]NSWLEC 151 at [68] section 79C(3A)(b) of the Act requires flexibility in the application of provisions of a DCP and the consent authority is required to determine whether the alternative solution is capable of meeting the object of the controls, without compliance with the relevant standards.

32. The following definitions in the dictionary of DCP 2012 are relevant:

View - an extensive or long range outlook towards a particular urban aspect or topographical feature of interest.

View corridor - generally take the form of cones of vision extending from a selected point towards the valued view.

Public submissions

33. The assessment of the original development application involved public notification to the surrounding neighbourhood in accordance with the DCP 2012. The concerns raised in these submissions can be summarised as follows:

1. Limited setbacks provided;

2. Development is located outside what was proposed in the subdivision consent as the ‘building envelope’;

3. Impact of the development on the adjoining local heritage item;

4. Height non-compliance with the RL specified in the 88B instrument;

5. Development in the coastal zone;

6. Bulk and scale;

7. Landscaping;

8. View loss/ impact on adjoining properties;

9. Other amenity impacts including: air quality; noise; privacy; visual amenity and solar access;

10. Impacts resulting from excavation;

11. Boundary fences; and

12. Appropriateness of the requested variation to the 88B instrument.

These submissions were considered in the proceedings, and were the subject of evidence from the experts, as detailed below.

Expert Evidence

34. The Court heard expert planning evidence from Garry Fielding, for the applicant, and Mr Garry Warnes for the Council. The experts participated in a joint conferencing process prior to the hearing which sought to address the issues in contention. As a result of the conferencing process they prepared a joint expert report which was tendered as Exhibit B.

Is the effect of proposed development on the significance of the heritage item acceptable?

35. LEP 2012 lists the original site, prior to subdivision (Lot 1, DP 986437), as a heritage item. As a result both the remaining lot containing the residence, and the subject site are listed as a heritage item.

36. Relevantly DCP 2012 at cl 5.05.06: Development in the vicinity of a heritage item, has the following objective and controls relevant to the proceedings:

1. Ensure development in the vicinity of heritage items is designed and located in such a way that the heritage significance of the heritage item is conserved.

Controls

1. New development and alterations and additions in the vicinity of heritage items respects and enhances the setting and significance of the heritage item with regard to the following elements:

(a) building envelope;

(b) proportions;

(c) setbacks; and

…

2. Development in the vicinity of heritage items respect the heritage item by:

(a) retaining adequate space around the heritage item to enable its interpretation;

…

(d) retaining significant views and lines of sight to the heritage item.

37. The statement of significance supporting the heritage listing of the site is as follows:

Associated with a prominent local citizen. Demonstrating the development of social class and economic growth of the region. Has the potential to significantly contribute to the understanding of lifestyle, building techniques and architectural style of the period. Early house predating residential subdivision of the area. Interiors of interest.

38. As a result of the subdivision it is relevant to assess the impact of the development on both the heritage significance of the vacant land (as it forms part of the item), and the impact of the proposed development on the remaining lot that contains the Barrymore residence.

39. The applicant prepared a Statement of Heritage Impact assessing the heritage significance of the subject site to support the development application (Exhibit 3). Based on the evidence of the experts and the heritage impact assessment I am satisfied that there is no detrimental impact from the proposed works on the subject site which forms part of the heritage item. In relation to the subject site cl 5.10(4) is satisfied.

40. The second component of the assessment is in relation to the impact of the proposed works on Barrymore itself. The Statement of Heritage Impact (Exhibit 3) concludes that the proposed dwelling on the subject site will have a ‘negligible impact on the heritage significance’ of Barrymore. This conclusion is supported by Mr Fielding on the basis that the key public views of Barrymore are obtained from Bathers Way, with the most significant view being that seen when approaching from Bar Beach up Kilgour Avenue. It is Mr Fielding’s evidence that this view provides a reading of the eastern elevation of the building and the south eastern corner of the building as members of the public move along the Bathers Way to Ocean Street. It is his evidence that the southern elevation (which shares a common boundary with the subject site) is less significant.

41. In submissions the applicant argued that the Councils assessment of the subdivision concluded that the excising of the subject site did not impact on the principal curtilage of the building. The Statement of Heritage Impact for the subdivision application stated:

The proposed line of subdivision will occur on the southern, or rear (and secondary) elevation and will affect an area of site which contributes least to the ‘curtilage’ of the item (ie the area of land surrounding the heritage item, integral to the capacity to interpret it). The residence was built with its main elevation and access driveway to Helen Street. The north and east elevations are the most significant, oriented away from the ocean. The curtilage is considered to be that area of land to the front (north) of the residence. The proposal [the subdivision] will have no impact on this curtilage.

42. It is agreed between the experts that the northern façade of the building is the most significant, but has been obscured from view by subdivision and development of land to the north of Barrymore. It is agreed that there is no impact from the proposed development to the northern façade.

42. In relation to the view from Bathers Way when approaching from the West towards Bar Beach Mr Fielding’s evidence is that a view to the south eastern corner of the building is important but that the view to that portion of Barrymore is unchanged between proposal, and a building compliant with the 88B instrument.

43. In concurrent evidence Mr Fielding agreed that the principal concern in relation to any heritage impact is that the development should not be overbearing in relation to the key views to ‘Barrymore’ from the public domain. In his evidence Mr Fielding states that in his view that the proposed building is an ‘appropriate contemporary design response to its setting and one that respects its relationship to Barrymore… I consider the proposed building’s predominately single storey form when viewed from the public domain as appropriately respectful of and subservient to Barrymore.’ As noted above it is his evidence that the key view is the approach from Kilgour Avenue, and it is Mr Fielding’s oral evidence that in this location the development provides a 10m setback and will read as siting behind the front alignment of ‘Barrymore’ and will be recessive to it.

44. In submissions Council argues that this 10m setback, whilst to the garage wall, excludes the consideration of the privacy screen that sits 900mm off the boundary with Bathers Way which will have the effect of further obscuring the view to the south elevation of ‘Barrymore’ from the public walkway, the Bathers Way.

45. In contrast to Mr Fielding, Mr Warne argues that isolating the views to the eastern elevation (the street view) as the primary view has the effect of discarding other views to the overall building and its surrounds. It is Mr Warne’s evidence that it is important for the public to be able to view the southern elevation (from Bathers Way) for two key reasons: to gain an appreciation of the size of the structure that is Barrymore; and to observe the alterations that have occurred to adapt the house and change the purpose of rooms and spaces over time.

46. For these reasons Mr Warne places emphasis on the ability for the public to have a view of Barrymore from Bathers Way, when approaching from the West towards Bar Beach, as this view provides an appreciation of the size of the structure and its alterations. It is his evidence that the proposed development will interpose between the Bathers Way and Barrymore, removing this view of Barrymore from the public with the exception of its roof.

47. In his evidence Mr Warne reiterated his view that the subdivision consent sought to ensure that a future building on the subject site was set 3m behind south eastern corner, to allow the corner of the sunroom Barrymore to be viewed from Bathers Way.

48. In his written evidence Mr Warne supported the appropriateness of the designs that were provided to the Council at the time of the subdivision (the Bale Designs) as:

… demonstrating how a two storey family residence could be built on the site, whilst respectfully maintaining the heritage significance of ‘Barrymore’, the dominant building in the location. (Exhibit 1)

50. In oral evidence Mr Warne agreed with the applicant’s representative that a casual observer would not distinguish the difference between the view to Barrymore from Bathers Way between the proposal and the Bale’s designs. However it was his evidence that the difference between the Bale’s designs, which conformed to the height restriction, and the proposal was that a greater proportion of the view to the roof is retained. It is his evidence that this exceedance of height above the general eave height of Barrymore (the height of the 88B restriction) will prevent the public interpreting the scale and size of the imposing structure the heritage item.

51. In contrast to Mr Fielding, Mr Warne’s evidence is that the ‘proposed building is not subservient in character to the larger neighbouring building ‘Barrymore’’. In relation to the compatibility of the proposed design he concludes that ‘the proposed development is not sympathetic to ‘Barrymore’ in that it presents as a massed structure with little architectural merit and overwhelms the viewer’s senses given its start contrast in building design to that of ‘Barrymore’’.

52. Clause 5.10 of LEP 2012 requires an assessment of the effect of the proposed development on the heritage significance of the Barrymore. Mr Warne argues that the proposed development will impact on the significance of Barrymore, as defined in the statement of significance [at 37]. It is his evidence that it will do so by reducing in the ability of the public to interpret the scale and size of Barrymore, and thus affect the reading of the distinction between the social classes that existed at the time the dwelling was constructed. In addition Mr Warne argues that the removal of the view to the southern elevation will obscure the understanding of the historically low value placed on views to the ocean, in contrast with today’s social values.

53. In oral evidence Mr Fielding disagreed with this assessment and argues that the proposed development will have a negligible impact on the heritage item, impacting only the view to the non-significant fabric of the southern elevation and a portion of the roof plane. He concludes that ‘Barrymore’ will remain the dominant element from the public view. In addition the proposal will act to screen the existing unit building at 2A Ocean street, in particular the under croft parking, making a positive contribution to the built form and the context of the curtilage of Barrymore.

54. The Council, in questioning the planning experts, took them to Takchi v Hornsby Shire Council [2007] NSWLEC 597 at [46] which provides a series of questions that address the curtilage of heritage items. It was Mr Fielding’s evidence that the issue of the appropriate curtilage to the heritage item was predominately a consideration for the subdivision application, and that the setting of Barrymore will not be deleteriously impacted by the proposal. He concluded that the important view corridors to Barrymore are retained.

55. In contrast the evidence of Mr Warne, in relation to the questions outlined in the above case, argues that whilst the original pastoral setting of ‘Barrymore’ is lost a greater setback and separation of the proposed development and the heritage item would allow greater corridors of view to ‘Barrymore’. Reiterating his earlier evidence he stated that the proposal will compete visually and given the reduced (non-complaint) setbacks the development provides no potential for landscaping to screen the development.

Findings

56. With regard to the relevant controls and the evidence of the experts in this case, I accept the conclusions of Mr Fielding that effect of proposed development on the significance of the heritage item is acceptable, for the following reasons:

1. At the commencement of the proceedings I had the benefit of a site view, and on the basis of that view I concur with Mr Fielding that the key public views of ‘Barrymore’ are obtained from Bathers Way, with the most significant view being that seen when approaching from Bar Beach up Kilgour Avenue. Whilst there is a view obtained approaching the site from the west along Bathers Way, this view is not towards a significant elevation of the building. It was accepted by the Council at the time subdivision, and by the experts that the north and east elevations are the most significant, oriented away from the ocean. This conclusion is supported by the site analysis figures contained in the Statement of Environmental Effect that was lodged with the application (Exhibit 3).

2. I acknowledge that the proposed development will obscure an appreciation of the whole of the roof structure of ‘Barrymore’. However, in contrast to the evidence of Mr Warne, I find that sufficient area of the roof will remain (including a full view of the chimney and gable structures) to appreciate the scale of the structure, particularly as the public is provided a range of views to the heritage item from Bathers Way. The experience of Barrymore in the public domain is an ambulant one which allows the observer to view the building from a range of locations and angles, not a solitary location.

3. I have also taken into consideration the recent planting undertaken by the Council adjacent the common boundary of the site and the Bathers Way (which can be viewed in Exhibit H). These plantings include a Norfolk Pine that, given its location approximately in line with the setback of the garage of the proposed building, will further obscure the public view to this south eastern corner ‘Barrymore’ from the Bathers Way at this particular location,

4. I accept the conclusion of Mr Fielding that the predominately single storey design and simple architectural form and detailing, whilst distinct to the architectural form and character Barrymore, are appropriately subservient to the heritage item. In addition I find that the proposed architectural design is responsive to the context of the site and will provide an appropriate screen to the current view from the public domain to the under-croft of the residential flat building at 2A Ocean Street.(Exhibit G)

57. Pursuant to cl 5.10(4) and considering the effect of the proposed development on the heritage significance of the item, I am satisfied that, from a heritage perspective, the proposed development is acceptable.

Is the proposed inconsistency with the building height restriction justified?

58. As noted at [13] the subject site is subject to a restriction that states: ‘No part of the building shall exceed a height of RL 28.22 on Australian Height Datum (AHD)’. The subdivision consent gives the reason for this restriction as:

to minimise the possibility that any future building on the land may obscure the view of or unreasonably detract from the appearance of the existing historic dwelling (Barrymore).

59. If the Court was of a mind to approve the development, it would be necessary to also determine to vary this restriction pursuant to s39(3) of the LEC Act.

60. The applicant submits that pursuant to s39(4) of the LEC Act  the 88B restriction is an instrument that the Court, in making its decision in respect of an appeal, shall have regard to (narrowly confined to the heritage impact of the proposal) along with the circumstances of the case and the public interest.

61. The Council submits that cl 1.9A of LEP 2012 gives the covenant force and it should form part of the assessment of the application under s79C1(a)(ii) of the Act , giving the instrument statutory weight, therefore as a de-facto height control on the site.

62. Mr Pickles SC, for the applicant, relying on Hillpalm Pty Ltd v Heaven’s Door Pty Ltd [2004]HCA59, argues that the of the subdivision consent was completed by Council’s acceptance of the 88B instrument and endorsement of the title document completed any role Council had in insisting on any conditions of the subdivision consent, including the 3m setback.

63. Mr O’Gorman Hughes for the Council argues that the conditions seeking the restriction to user in the subdivision consent (DA/98/1375) remains relevant, therefore including the setback of 3m from the corner of ‘Barrymore’.

64. Mr Warne argues that the purpose of the imposition of the covenant was to reflect: the size and shape of the lot; the need to protect the heritage significance of Barrymore; and the Council’s desire not to rely solely on the DCP controls as the site was not subject to height or floor space controls in the LEP at the time. He also argues that the restriction on title had the consequence of protecting as much as was reasonable the view to the east (Bar Beach) from the units located at 2A Ocean Street.

65. In contrast Mr Fielding argues that the restriction should not be rigidly applied, but should attract the same flexibility as other controls on the basis of an appropriate merit assessment of the development. In relation to the intent of the covenant he argues that, as the LEP at the time did not contain controls directed at influencing building bulk and scale, the restriction on title could be seen as Councils means of seeking to control the bulk and scale of any future dwelling on the site to maintain a view of the heritage item from the public domain. He gives weight to this conclusion by reference to the stated reason for the imposition of the condition, which was directed at protecting views to ‘Barrymore’ rather than from any adjoining or adjacent dwelling across the subject site.

66. It was strongly argued by the applicant that the Section 88b instrument, and the height restriction, should be read as follows:

1. The restriction to the use of the land (ie the height restriction for development) only applies to the area marked as ‘D’. Outside this area the only applicable height limit is the LEP (cl 4.5) height limit of 8.5m;

2. That the restriction identifies, in Part 1, that the burdened parcel is Lot 42 (the subject site) and the benefited lot is Lot 41 (Barrymore); and

3. The restriction was not imposed for the purposes of protecting views from adjacent properties either on the subdivision consent or as a condition on the property title; and

4. that consideration of whether it should be varied to permit the proposal should be restricted to a determination of whether the proposal obscures the view of, or unreasonably detracts from, the appearance of the existing historic dwelling (Barrymore)

67. Council in submissions relied on Chehab v Canada Bay Council [2002] NSWLEC 220 which concludes that in making decisions in relation to development on land which is the subject of a restriction to user registered on the land (pursuant to s88B of the Conveyancing Act 1919) the Court must have regard to the instrument under both s34(4) of the LEC Act [at 34] and s79C of the Act [at 36]. In summary at [36] Pain J states:

The fact that there are two bases on which the restriction to user is a relevant matter for consideration does not have particular significance as a matter of practice. Ultimately the question of consideration will be determined by the weight which should be attributed to the restriction as to user.

68. In relation to justifying the exceedance the applicant relies on:

- The 2014 works to Bathers Way have changed the environmental conditions of the site in comparison with those present at the time that the S88B restrictions were put in place, and the applicant proposes that this justifies an amendment of the Covenant by Council to allow the proposed design.

- The increase in height requested does not contravene the aims of the S88B restriction, in that no significant views of ‘Barrymore’ are compromised in the proposal, as described for the Building Envelope Restriction.

- The increase in allowable height requested puts the proposed first floor level 260mm above the existing ground level in the high corner of the site, which is by no means unreasonably high, particularly when considering the height of the adjacent four storey apartment building and the fact that this building has no habitable dwellings on the ground level. The requested increase in height achieves greater visual and aural privacy for the residents of the proposed dwelling by elevating them above the level of the adjacent Bathers Way Footpath. Given the slope of the site, this elevation is greatest where most needed, where private living areas are adjacent to the newly created picnic areas of Bathers Way.

- The requested height increase achieves greater security for the residents of the proposed dwelling, with the greater elevation helping to deter unauthorised access via climbing this side of the building.

- It is noted that as described, the reason for the placement of the S88B restriction was for the benefit of the Heritage Item ‘Barrymore’, not for the benefit of occupants of 2A Ocean Street residences. Potential arguments linking the issue of view sharing with the S88B restriction are as such not valid. View sharing issues are addressed in part 4.3.12 - View Sharing later in this report, and in a separate View Study document submitted with this application.

Extract of Statement of Environment Effect (Exhibit 3)

Findings

69. It is clear that in approving the subdivision application Council applied its mind to the future development of Lot 42. This can be seen in the framing of the consent conditions of the subdivision application and the subsequent placement of the 88b instrument and the height restriction on the title of the lot. It is apparent from the evidence that any building envelope, whilst forming part of the initial consent for subdivision did not form part of the title that was endorsed by Council and registered. I accept the submission of the applicant that the registered restriction, not the condition of the subdivision consent, is a matter for consideration in these proceedings and should be given weight in the assessment.

70. In the preceding [40-47] I have discussed the evidence from both experts in relation to the views of Barrymore from the public domain. This evidence is relevant to the assessment of whether the intent of the restriction is met. The view that is most affected by the variation to height is the view along Bathers Way as a pedestrian traverses west from 2A Ocean Street towards Kilgour Avenue. Importantly both experts agreed in oral evidence that a casual observer would not be able to distinguish the difference in the view to Barrymore from this location between the proposal and a scheme of compliant height. No significant features of the heritage item are obscured by allowing the increase in height beyond the level sought in the restriction.

71. In the absence of the 88B instrument and the height restriction, under LEP 2012, the development of the site could, subject to merit assessment, obtain a height of 8.5m. The specific design of the proposal has minimised the overall height of the development by utilising the cross fall of the site and through excavation of the lower level. At the south western corner of the site the first floor level of the development is sited approximately 260mm above natural ground level.

72. The Council is of the view that a reduction in height (of around 200mm) is possible through a reduced ceiling height. Whilst this may be technically possible, I am not convinced on the evidence that it would result in an outcome that would enhance the achievement of the purpose of the restriction beyond what is achieved by the current proposal. Such a reduction would reduce the quality of the internal space of the proposed development.

73. Following careful consideration of the evidence and reading the title contained in Exhibit 4 I accept the applicant’s submission of the reading of the restriction. I am satisfied that, subject to the merit assessment of the remaining issues in the case, there are no substantive issues in relation to the restriction that would warrant the refusal to vary the and the height restriction contained in the 88B instrument in this case.

Are the view impacts from the proposal are reasonable?

74. The planning experts agree that the lower level east facing apartments (Units 13 & 14) in the residential flat building at 2A Ocean Street and the south facing windows of ‘Barrymore’ will be affected by the proposal. The experts also agreed in oral evidence that the iconic view comprises: the view to Shepherd Hill, the headland to Bar Beach; the rock shelf; and that part of the beach that can be seen at its interface with the breaking waves.

75. In oral evidence agreement was reached that the boundary between the subject site and 2A Ocean Street is appropriately nominated as a side boundary, with the rear boundary being the boundary of 2A Ocean Street with Busby Close.

76. Cl 3.02.09 in DCP 2012 provides the following controls relevant to the assessment of view impacts.

Performance criteria

1. Development is designed to allow view sharing with neighbouring properties.

2. Design plans identify existing views and demonstrate how view sharing is achieved.

3 Important public views and vistas are to be enhanced by the form and treatment of buildings including roof scapes.

Acceptable solutions:

1. The building height does not exceed 5m or if the building is over 5m adjoining properties do not have views or vistas to water, city skyline and iconic views obscured by the proposed development.

Note: Merit based proposals (that do not meet acceptable solutions) must address the performance criteria having regards to the planning principle for view sharing established by the NSW Land and Environment Court (Tenacity Consulting Vs Warringah Council (2004)

77. It is agreed between the parties that the development does not meet the criteria to fit under an acceptable solution, and that performance assessment it required.

78. Tenacity Consulting v Warringah [2004] NSW LEC 140, prescribes the following four step planning principle in assessing view loss:

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

79. To assist in assessing the potential view loss from the proposal the applicant provided height poles on site that were surveyed to confirm their accuracy with relation to the proposal. The survey indicates that the height poles, at the time of survey were within 20mm of the roof height of the proposal.

80. Having regard to the Courts planning principals, and the site view at the commencement of the proceedings I have summarised the experts classification of the view impacts in the following table:

Mr. Fielding

Location	Classification	Part of the property where the views are obtained	Impact
Unit 13	Iconic views	Across side boundary from balcony, living area and bedroom.	Partial loss from balconies, living area, bedroom Severe
In oral evidence Mr Fielding concluded that the impact was appropriately classified as severe as a part of the iconic view was retained with Bar Beach headland and rock shelf, Shepherd Hill, and the baths being retained. In his assessment Mr Fielding gave weight to the fact that the loss of view occurred over a side boundary and that views from the living area in a standing position would retain a view of the ocean and the horizon.
Unit 14	Iconic views	Across side boundary from balcony, living area and bedroom.	Partial loss Moderate
In oral evidence Mr Fielding concluded that the impact was appropriately classified as moderate as it was necessary to assess the total views available from the apartment. These include views obtained to the west to Dudley headland, Merewether Headland and beach. Of the view to the east his view was that the impact was appropriately classified as moderate as a part of the iconic view was retained (Bar Beach headland, rock shelf, and Shepherd Hill).
Barrymore	Not Iconic	Across side boundary from service room	Partial, Minor
In oral evidence Mr Fielding concluded that the key view from the affected sunroom is to the east, which encompasses the iconic elements. The proposal has no effect on this view. The view affected by the proposal is to the beach, which is to the south and across the side boundary. It was his evidence that this impact on this view is characterised as minor.

Mr. Warne

Location	Classification	Part of the property where the views are obtained	Impact
Unit 13	Iconic views	Across side boundary from balcony, living area and bedroom.	Partial from balcony Complete from living area, bedroom Devastating.
In oral evidence Mr Warne concluded that the impact was appropriately classified as devastating due to the loss of views to the beach itself and the wave zone. Whilst the apartment will retain some view to the escarpment from the balcony off the living area any view of the beach itself is lost. From the living area in a standing position the only component of the existing view retained is the horizon, and from a seated position it is likely the apartment will experience complete loss of the current view.
Unit 14	Iconic views	Across side boundary from balcony, living area and bedroom.	Partial Severe
In oral evidence Mr Warne concluded that the impact was appropriately classified as severe due to the loss of views to the beach itself and the wave zone. Whilst the apartment retains views to the west, these views are less accessible to the living areas and main portion of the balcony than the views that are lost.
Barrymore	Not Iconic	Across side boundary from service room	Complete removal of southern view Severe
In contrast to Mr Fielding, Mr Warne classifies the room impacted as a living area and on the basis that this is the only living area on the upper floor of Barrymore in his evidence he placed greater weight on the loss of view from this location. In his evidence he concludes that these views are rear views and should be afforded greater importance than side views. He concurs with Mr Fielding that the iconic view is to the east, which is unaffected by the proposal.

81. The experts agree that in all cases the proposed development does not result in the complete loss of an iconic view.

82. Evidence provided to the Court from members of the public emphasised the importance of the views to the east, and their contribution to the resident’s enjoyment of their apartments. Concern was expressed that the current proposals exceedance of the 88b instrument and the height restriction will contribute to view loss. These objectors also drew the Courts attention to the further impact that would arise from roof plant, such as solar panels, chimney flues and the like that may exceed the final roof height.

83. In assessing the reasonableness of the proposal Mr Warne argues that the controls on bulk and scale for the subject site are not predominately derived from LEP 2012, but principally from the 1999 subdivision consent and the building height restriction on the title of the subject lot.

84. In contrast, Mr Fielding’s evidence is that the key controls that apply to the site are those contained in LEP 2012, namely the maximum height of 8.5m (cl 4.3) and FSR of 0.75:1 (cl 4.4). The development complies with these controls.

85. The experts agree that in assessing the reasonableness of the proposal it is necessary to also consider the compliance of the proposal with the relevant controls in DCP 2012. It is accepted by both parties that the proposal does not comply with the acceptable solutions provided in Cl 3.02.04 and a performance based assessment is required.

86. At cl 3.02.09 the relevant performance criteria in the assessment of the variation to setbacks are:

1. Development is of a bulk and scale that:

(a) is consistent with and complements the built form prevailing in the street and local area;

(b) does not create overbearing development for adjoining dwelling houses and their private open space;

(c) does not impact on the amenity and privacy of residents in adjoining dwelling houses;

(d) does not result in the loss of significant views or outlook of adjoining residents;

(e) provides for natural light, sunlight and breezes.

87. It is Mr Fielding’s evidence that the rear and side setback variations have no impact on view loss, and relies on the photographs of the affected views with the site poles in forming this conclusion (Exhibit 9).

88. In the alternative Mr Warne argues that the features in the setback areas (the lap pool and privacy screen) should be excluded from any approval and this area utilised for landscaping to lessen the effects of the development on adjoining neighbours. It is was also his oral evidence that in his opinion an increase in the side setback to the common boundary with Barrymore would lessen the view loss experienced by Unit 13.

89. During on the onsite view both experts acknowledged that the Norfolk Pines planted in the public domain will also, overtime, change the view from the subject site, and surrounding properties.

Findings

90. In submissions I was referred by the applicant to Arnott v Sydney Council [2015] NSWLEC 1052 wherein O’Neill C dealt with view impact issues on residential apartments within a unit complex. Commissioner O’Neill decided that:

72   I accept and adopt Ms Morrish’s interpretation of the skilful design test in the fourth step of the Tenacity planning principle. The skilful design test is not about whether a design is skilful, in the sense of the architect’s expertise in creating a successful architectural composition; instead the intent of the fourth step is to look for opportunities within the massing and form of the proposal to minimise the impact on views across the site, whilst maintaining the capacity to reasonably develop the site. This is evident in Dr Roseth’s own words at paragraph 29 of the Tenacity planning principle, ‘whether a more skilful design could provide the applicant with the same development potential and amenity’ [bold added]. It is partly for this reason that the Tenacity planning principle is less helpfully applied to impacts on views from individual apartments within residential apartment buildings, as there are generally more limited opportunities to rearrange massing to preserve what is often a singular orientation to a view. For this reason, it is also appropriate toconsider the residential apartment building as a whole in assessing view impacts. [Emphasis added]

91. I am satisfied that the resident objectors concerns regarding the impact of the proposed dwelling are well founded; however it is fair to weigh this detrimental impact against the reasonableness of the proposal. This involves essentially applying [29] of the Tenacity planning principle, ‘whether a more skilful design could provide the applicant with the same development potential and amenity’.

92. The residential flat building at 2A Ocean Street contains 12 units across two buildings. In the eastern most block (adjacent the subject site) Units 13,17 and 21 have views North and East, whilst 14,18 and 22 have views East and South. The owner for Unit 13 made clear to the Court that the view most valued was that to the east, of Bar Beach and the headland, rather than the view to the Newcastle CBD skyline. Both of the views from Unit 14 are highly valued and contain iconic elements, and are available from both the balcony and the internal spaces of the apartment. It is agreed between the experts that the remaining apartments due to their elevation and or orientation are unaffected by the proposal.

93. In considering the different evidence, I accept the assessment of Mr Fielding that the view loss for Unit 13 is not complete and is appropriately classified as severe, and for Unit 14 as moderate. I have given weight in my consideration to the fact that the affected views from these units are obtained across the side boundary of 2A Ocean Street, are not the complete views available from the apartments and do not affect the majority of the apartments in the unit block (Arnott v Sydney Council [2015] NSWLEC 1052).

94. I am not satisfied by the submission that 88B instrument, and its height restriction, should operate to be a de-facto height control for consideration of the reasonableness of the development on the site. To do so would effectively limit the proposed development to a single storey in height and derogate the height control in LEP 2012. In my mind it is clear that the restriction was implemented to maintain views to ‘Barrymore’ rather than to protect private views from residential properties across the subject site. As referenced in [68] in making decisions in relation to development on land which is the subject of a restriction to user registered on the land (pursuant to s88B of the Conveyancing Act 1919) the Court must have regard to the instrument. In this case it is in the assessment of the impact of views to Barrymore that the restriction is relevant.

95. If it is accepted that the s88b instrument is not relevant to view loss, overall the quantum of loss experienced by the residents of Units 13 and 14 is far less that if the building extended to the a height compliant with Councils LEP, 8.5m. I am of the view that the proposal has lowered the building at the most crucial point (the south western corner) to a point that reasonably preserves the amenity of the proposed development, whilst minimising the impact on the amenity of neighbouring properties. Full preservation of views from the lower level units in 2A Ocean street is not reasonable for the following reasons:

1. The view is over the site boundary of the property and following the subdivision of the subject land the residents had a reasonable expectation that the site would be developed for residential purposes. Whilst the development does not comply with the height restriction, as discussed in the proceedings it achieves the intent of the restriction and was not applied for the purpose of maintaining views. I am not convinced on the evidence that mandating the proposal to reduce the overall height by in the order of 200-500mm by a reduction in ceiling heights would provide a material improvement in view sharing (Exhibit 9 and H). Equally further excavation into the site to reduce the overall height of the proposal would effectively render the rooms at the rear of the ground level entirely subterranean and of poor amenity.

2. In relation to the acceptability of setback variations Mr Warne argues that the proposal should increase the eastern setback to create a view corridor for the affected residents. By reference to the architectural drawings (Exhibit 1) it can be established that with the exception of 0.2m² the development complies with cl 3.02.04(1) in this location. As detailed in [37] s79C3A(b) mandates a flexible approach in applying DCP controls by focussing on the objectives they seek to achieve. In considering the different evidence, I accept the assessment of Mr Fielding that the variations to setback controls sought do not have an impact on view loss, and more broadly meet the performance criteria established by DCP 2012.

3. In contention between the parties is the compliance of the development with cl 3.02.04 Side and Rear Setbacks. On the basis of the site view and the evidence, I find that the development meets the performance criteria of this control as: the development is of a bulk and scale consistent with and complementary to the street; does not unreasonably impact on amenity, privacy, or result in significant view loss for adjoining residents, and provides natural light and breezes. In reaching this conclusion I have given consideration to the permissible building envelope applicable to the site. This comparative approach in relation to view loss is informed by the approach taken by Brown C in Grundy v Waverley Council [2016] NSWLEC1526:

[42] On the question of whether the development is consistent with the objective to preserve the environmental amenity of neighbouring properties; the answer is not so simple as to conclude that as views are to be lost then the environmental amenity is not preserved. It would be unreasonable, in my view, to read the word “preserve” so literally that it would stop the construction of a complying (or more than complying) development on an adjoining property. The answer lies in the need to consider at least the flexibility available in cl 4.6, the particular circumstances of the site, the characteristics of the proposed dwelling, the relevant planning controls and its relationship with surrounding properties. The principles relating to view sharing in Tenacity are also relevant in assessing whether the view loss is reasonable.

4. I am satisfied that the subject development has made a reasonable attempt to minimise view loss from 2A Ocean Street and Barrymore.

96. In relation to the view loss from Barrymore I prefer the evidence of Mr Fielding that the key view from the affected sunroom is to the east, which encompasses the iconic elements. This conclusion is supported by the site view undertaken. It is agreed that the proposal has no effect on this view. The view affected by the proposal is to the beach, which is to the south and across the side boundary. As detailed above I am satisfied that the development has reasonably minimised the view loss from adjoining properties by reducing the overall height of the building. I concur that the impact on this view is characterised as minor and is reasonable in the circumstances of the case.

97. DCP 2012 in defines view as an extensive or long range outlook towards a particular urban aspect or topographical feature of interest [emphasis added]. This accords with the experts assessment of the iconic view as a collection of elements that are recognisable as the topographical features of Bar Beach. In this context I am satisfied that the development meets the performance standards for View Sharing in Cl 3.02.09 of DCP 2012.

98. Whilst a Unit 13, and to a lesser extend Unit 14 are significantly impacted by the proposal, in the overall assessment I have considered also the prevailing planning controls, the subdivision consent (i.e. the provision of a dwelling entitlement on Lot 42) and the design of the dwelling. I find that the proposed development is a reasonable balance in terms of the competing private interests.

99. In response to the evidence there is merit in applying a condition to ensure that the maximum height of the development (RL 29.590) is maintained and the roof space is not utilised for plant and equipment. A condition to this affect will provide additional certainty to the approval.

Conclusion

100. Having carefully considered the evidence of the experts and the objectors and the submissions of the counsel, I am satisfied that following my evaluation under s79C of the Act that the proposal warrants approval.

Orders:

101. The orders of the Court are:

1. The appeal is upheld;

2. The Court determines to vary the Section 88B Restriction on the use of Lot 42 DP1160807

1. Consent is granted to Development Application No. DA/2016/00159 for a new two storey dwelling, associated swimming pool and site works at 46 Kilgour Avenue, Merewether (Lot 42 DP1160807), subject to the conditions in Annexure A including the following additional conditions:

1. No structures, plant or the like are to exceed the maximum roof RL of 29.590 shown on the architectural plans prepared by Fearon Hay Architects, detailed in condition 1 of this consent.

4. The exhibits are returned with the exception of 1, 3, 9, A, and B.

…………….

D M Dickson

Commissioner of the Court

282693.16 Dickson (C) (1.50 MB, pdf)

Decision last updated: 15 February 2017