Dive v Hunters Hill Council

[2012] NSWLEC 1045

Land and Environment Court

New South Wales

Medium Neutral Citation:

Dive v Hunters Hill Council [2012] NSWLEC 1045

Hearing dates:

21 February 2012

Decision date:

29 February 2012

Jurisdiction:

Class 1

Before:

Brown ASC

Decision:

1. The appeal is upheld.

2. Development Application 2010/1070 for alterations and additions to an existing dwelling house at 7 Elgin Street, Woolwich is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit A.

Catchwords:

DEVELOPMENT APPLICATION: alterations and additions to an existing dwelling - view loss - streetscape/character

Legislation Cited:

Environmental Planning and Assessment Act 1979
Hunters Hill Local Environmental Plan No 1
Land and Environment Court Act 1979

Cases Cited:

Tenacity Consulting v Waringah [2004] NSWLEC 140

Category:

Principal judgment

Parties:

Steven Dive and Melanie Dive (Applicants)

Hunters Hill Council (Respondent)

Representation:

Mr G McKee, solicitor (Applicants)

Mr J Cole, solicitor (Respondent)
McKees Legal Solutions (Applicants)

HWL Ebsworth Lawyers (Respondent)

File Number(s):

11155 of 2011

Judgment

1. ACTING SENIOR COMMISSIONER: This is an appeal against the refusal of Development Application 2010/1070 by Hunters Hill Council for alterations and additions to an existing dwelling house, including a first floor addition and deck at 7 Elgin Street, Woolwich (the site).

1. The appeal was subject to mandatory conciliation and arbitration on 20 February 2012 under s 34AA of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34AA(2)(b), and the proceedings dealt with forthwith pursuant to s 34AA(2)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34AA(2)(b)(ii).

1. The contentions raised by the council can be summarised as:

• inadequate view sharing with the adjoining property at 5 Elgin Street,
• loss of privacy for 5 Elgin Street, and
• unacceptable roof form, in relation to the streetscape, compatibility with character and scale of surrounding development.

1. Elgin Street runs in an east-west direction and with 5 and 7 Elgin Street located on the southern side of the street, both dwellings have a northerly orientation to Elgin Street. The existing dwelling on the site is an older style single storey with an attached garage. The adjoining dwelling at 5 Elgin Street is a newer two-storey dwelling. At the centre of the contentions is the not unreasonable desire of both properties to maximise views in an easterly direction where panoramic views are available of Chatswood, North Sydney, the Sydney Harbour Bridge, the Sydney CBD skyline and parts of the land/Sydney Harbour interface. At present, the dwelling at 5 Elgin Street has largely unencumbered views to the east over the existing single storey dwelling on the site from three different locations, being:

• a deck area off the living area on the first floor located within the Elgin Street setback (the deck view),
• double sliding glass doors and juliete balcony off the living area on the first floor (the living area view), and
• a recessed balcony into the roof form with internal stair access from the living area (the balcony view).

1. Observations of the existing views were made from each location on the site inspection.

View sharing - the evidence

1. Mr Andrew Minto, provided expert town planning evidence for the applicant and Mr Mark Adamson, for the council. Both experts addressed the contention of the impact on the existing views from 5 Elgin Street through the principles on view sharing in Tenacity Consulting v Waringah [2004] NSWLEC 140. These relevantly state:

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.

1. On the first step in Tenacity , there was general agreement between Mr Minto and Mr Adamson on the views to be affected by the proposed development from each of the three viewing locations at 5 Elgin Street. Their assessment was helped by the installation of height poles on the site inspection that identified the approximate location of the proposed dwelling, particularly the north facing balcony and roof form. Mr Adamson describes the existing views as "highly valued by the occupants of the dwelling", "very significant" and "iconic and panoramic". Mr Minto acknowledged the significance of views, including the "iconic" significance of the Sydney Harbour Bridge.

1. The second step requires a consideration of the part of the property where the views are obtained. Again, there was general agreement between Mr Minto and Mr Adamson on the location of the view loss, although Mr Minto notes that Tenacity provides that the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. Mr Adamson acknowledges these comments in Tenacity however states that the proposed building does not necessarily need to extend across the entire "building zone" area. There was also agreement between Mr Minto and Mr Adamson that if the three viewing areas were prioritised in terms of their value; the highest priority would be given to be living room view, followed by the balcony view and the deck view.

1. The third step requires an assessment of the extent of the impact. Mr Minto and Mr Mark Adamson, in their joint report, helpfully provide a qualitative assessment of the potential impact from the three viewing location at 5 Elgin Street although there was some disagreement over the appropriate location for the assessment of the extent of the impact. Their qualitative assessments for each viewing location are:

ADAMSON	MINTO
THE DECK VIEW	Moderate/severe	Moderate
THE LIVING AREA VIEW	Devastating	Severe
THE BALCONY VIEW	Moderate/severe	Minor

1. The fourth step requires an assessment of the reasonableness of the proposal that is causing the impact and at this point, Mr Minto and Mr Mark Adamson differ considerably. Mr Adamson states that the proposal fails to satisfy the requirements of view retention and sharing in cl 7.6.2 of Hunters Hill Development Control Plan No. 15 - Residential Development (DCP 15). The built form relies on the retention of the existing dwelling with its 3.65 m ceiling heights and this contributes to the overall height of the building. In his opinion, the proposal seeks to maximise the same views it removes from its neighbour and when combined with the extent of the built form towards the street frontage; the proposal creates unacceptable view loss from the adjoining property.

1. Mr Adamson states that a more skilful design could clearly produce a better outcome and this would involve modification of the void area over the study and roof and the location and orientation of the front balcony and its roof. The view loss experienced from the living area windows could be reduced through more skilful design at a scale consistent with expected planning and community outcomes. Overall, the proposed development does not appropriately respond to the requirements in DCP 15 to minimise view loss and share views.

1. Mr Minto disagrees with the conclusions of Mr Adamson and states that each of the three viewing locations have high levels of amenity as they all have generous dimensions and are capable of being used for a range of purposes, including both passive enjoyment and entertaining. If there were not three viewing locations and if only one of the three areas providing views was available from 5 Elgin Street, and if the impact on this view was significant, Mr Minto states that the view impact would likely be unsatisfactory. In this case, the deck view and the balcony view are over the area of the existing single storey dwelling on the site, which Mr Minto refers to as the "building zone". A 2- storey residential dwelling in this location is not unreasonable particularly given that there are no departures from the numerical requirements in the council planning controls. He states that the proposed alterations and additions are not excessive in size or unreasonable in form and have been specifically designed to maximise views from 5 Elgin Street by including open balcony structure with a low pitched roof to the Elgin Street frontage where views can be achieved through and over this structure. These views have been further improved with the amendments suggested by the applicant.

View sharing - findings

1. Clause 7.6 - Views of DCP 15 relevantly states:

7.6.1 Objectives

To provide opportunities for view sharing by both the existing and future residents of the Municipality.

To ensure that the maximum number of residents enjoy a view by avoiding the monopolising of a view by existing dwellings and undue obstruction of views by new dwellings or additions.

7.6.2 General Requirements

New development should be designed to minimise view loss to adjoining or adjacent properties while still providing views from the development itself. This practice is called view sharing...

1. In terms of the assessment framework , Tenacity and the objectives and general requirements in DCP 15 adopt the principle of view sharing. View sharing is succinctly described in Tenacity. For approval to be granted, the proposed development should not monopolise or unduly obstruct existing views and should minimise view loss to adjoining properties ( cl 7.6 of DCP 15) . As the proposed development is a complying development , Tenacity asks whether a more skilful design will achieve the same development potential as the proposed development and at the same time provide less impact on adjoining properties (Test 4 in Tenacity ).

1. As part of the conciliation phase of the hearing, the parties discussed a number of changes to the proposed development and while there was some agreement, the extent of changes did not fully address the concerns of Mr Adamson. The changes addressed part of the roof form on the north western corner of the building that contains the study and the stair to the first floor level. The effect of the changes was to create a roof form more consistent with the pitched roof character in the area and with the consequent benefit of improving the view through the proposed deck from

the east facing living room doors at 5 Elgin Street. The applicant tendered conditions (and also plans that showed the effect of the proposed conditions) to reflect this change. In addition, other minor changes that reduced the bulk of the roof by changing it from a Dutch gable roof with gablets to a simpler pyramid roof form and reducing its overall height were proposed by the council and accepted by the applicant.

1. With the benefit of the site inspection, the presence of the height poles, observations of the existing views from the three viewing locations at 5 Elgin Street; a clear understanding was gained of the impact on the existing views by the proposed development. I am satisfied that the proposed development, with some minor changes, is acceptable when tested against the principles in Tenacity and the objectives and general requirements in DCP 15 for number of reasons.

1. The existing views from 5 Elgin Street from the three viewing locations are unconstrained at the present time, largely because of the single storey dwelling on the site. In my view, the retention of all views in their current form is an unreasonable expectation particularly given that the views are across a side boundary. The protection of views across side boundaries creates additional problems, in terms of view sharing and is a matter raised in Tenacity. The protection of the existing views becomes even more difficult when the proposed development is a complying development.

1. As I understand, Mr Cole, the council's solicitor, submits that notwithstanding the agreed position that the proposed development is a complying development, a more skilful design is available that will allow the applicants to achieve a reasonable development of the site and at the same time reduce the impacts on 5 Elgin Street. This more skilful design generally provides for the relocation of the proposed deck from the northern elevation to the eastern elevation so that views from the deck viewing area at 5 Elgin Street are less restricted and greater privacy between the two dwellings will be achieved. While I accept that this may address the concerns of 5 Elgin Street in the short term, I did not accept that it could be regarded as a more skilful design as it potentially creates a similar problem with view sharing for the proposed development as the property directly to the east of the site contains only a single storey garage with a dwelling further to the south. Any redevelopment would more than likely result in a two-storey form that would likely block views from the east facing deck, suggested by the council. It would seem that this was not an approach previously considered acceptable by the council given the evidence of the owner of 5 Elgin Street who stated that an east facing deck was rejected by the council in favour of the deck that encroaches significantly to the setback to Elgin Street but provides for the retention of the significant views in an easterly direction.

1. On the question of whether the proposed development monopolises or unduly obstructs existing views and does not minimise view loss to adjoining properties, I can comfortably conclude that the answer should be answered in the negative.

1. I accept the evidence of Mr Minto that the effect on views should be considered collectively from the three viewing locations at 5 Elgin Street. Even though the most significant impact is on the living room and that there was agreement that this location was the most significant of the three viewing locations in the dwelling, it must also be remembered that this location is also the most susceptible to any development of the site because of its location directly opposite the area on the site where any redevelopment is likely to take place. This needs to be compared to the deck viewing area where views are retained to the east by the different street setbacks of the decks and the balcony viewing area where views are largely retained because of the elevation of this area and ability to view over a large area of the proposed development. These views were also enhanced with the amendments to the roof form of the proposed development.

1. I am also satisfied that the applicant has made reasonable attempts to maximise views from the living room area through the proposed deck to the east, including restrictions on the type of improvements allowed on the deck. While this is clearly not as desirable as the existing unencumbered views, it is nonetheless a reasonable compromise given the views available from the other two locations in the dwelling and the reasonable assumption that a dwelling could be constructed on the site that conform to the councils planning requirements.

1. Using the qualitative terms used in Tenacity, I would describe the view loss from the deck, living area and balcony as moderate, severe and minor, respectively. Collectively, I am satisfied that the view loss created by the proposed development does not monopolise or unduly obstruct existing views and minimises view loss to adjoining properties.

Privacy

1. Loss of privacy is raised in relation to potential overlooking from the proposed deck to the existing deck and living room area of 5 Elgin Street as the floor level are approximately the same for both dwellings.

1. Clause 7.5 - Privacy of DCP 15 relevantly states:

7.5.1 Objectives

(a) To provide for the reasonable privacy of dwellings and outdoor spaces.

7.6.2 General Requirements

New development should be designed to minimise loss of privacy to adjacent properties. Screening, offsetting of opposing windows, reduction in window areas and orientation of dwellings shall be provided to ensure visual privacy.

1. The clause provides diagrams showing different techniques of providing privacy between properties. Some diagrams do not contain specific dimensions for building separation however one diagram indicates that an adjoining private open space area requires screening if it is located within a distance of 9 m and at 45° from a window of an adjoining property.

1. In this case, the minimum distances from the proposed deck to the edge of the juliete balcony and the deck of 5 Elgin Street are 9 m and 9.6 m, respectively. Given the orientation of the lots, the high values of the views sought by both properties, the difficulty in achieving unencumbered views across side boundaries and the minimum separation distance of at least 9m between viewing locations on adjoining properties, I am satisfied that a reasonable level of privacy is achieved and that the proposed development has been designed to minimise loss of privacy.

Character/streetscape

1. The site is zoned Residential 2(a) under Hunters Hill Local Environmental Plan No 1 (LEP 1). The site is also located within a Foreshore Scenic Protection Area and a Heritage Conservation Area and is within the vicinity of heritage items at 8, 10, 12, 14 Alfred Street and 93, 96, 97, and 99 Woolwich Road.

1. Clause 18A provides that consent may not be granted for development within a Foreshore Scenic Protection Area unless an assessment has been made of the appearance and visual quality of the development when viewed from the waterway (cl 18A(a)) and the impact of the proposed development towards the waterway from public roads and from public reserves (cl 18A(b)).

1. Clause 19(3) provides that consent shall not be granted on land in the vicinity of an item of the environmental heritage unless an assessment has been made of the effect of the development on the heritage significance of the item and its setting. Even though there are a number of items of environmental heritage within the vicinity of the site, the council raised no issue with the relationship between the items and the proposed development.

1. Clause 19A(2) provides that consent shall not be granted to a development application within a conservation area unless it has made an assessment of the effect the proposed development would have on the heritage significance of the conservation area. Clause 19A(3) provides that consent cannot be granted unless certain building elements within the subclause are considered.

1. The initial concerns of the council centred on the long sloping roof form on the north western corner of the building that contained the study and the stair to the first floor level. With the amendments proposed by the applicant that reinstated a more traditional pitched roof form for the dwelling and a flat roof over the proposed deck, I am satisfied that the proposed development will sit comfortably with other adjoining and nearby residential development and have little or no effect on the heritage significance of the conservation area pursuant to cl 19A(2). I also satisfied that the proposed development satisfactorily considers the building elements identified in cl 19A(3).

1. I concur that the proposed development will have no effect on the heritage significance of the items of environmental heritage, in the vicinity of the site, and their settings pursuant to cl 19(3).

1. While it was agreed that the site does not fall within Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 , however reference is made to this plan in cl 5.3 e of the DCP where it states that development should address the design principles and objectives of this plan, notwithstanding that this document may not be specifically applicable. I did not understand that the appearance of the development when viewed from the waterway to be a significant issue in proceedings as the Court was not taken to any location beyond the immediate vicinity of the site to view the proposed development. Given that the proposed development satisfies the numerical requirements of the councils planning controls for the construction of a dwelling house, that the materials are compatible with the conservation area and the considerable distance from Sydney Harbour, it would seen that it would be difficult if not impossible to reasonably argue that the proposed development was unacceptable in this context. Similarly, it would be equally difficult to argue that the impact of the proposed development towards the waterway from public roads and from public reserves was unacceptable. Consequently, I accept that cl 18A and Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 , create no barrier to the approval of the development application.

Conditions

1. A number of additional conditions were proposed by both the applicant and the respondent, many of which were acceptable and have been included in the conditions of approval. The disputed conditions of the council are:

1, The flat roof over the "balcony" forward of the northern facade of the building shall be removed along with pier posts.

1. This condition is unnecessary given the findings on view sharing and the form and design of the proposed balcony.

3. The "ski slope" roof over the downstairs study and stairs to the second storey being redesigned to have a flat roof section over the front of the study and the front door entrance. This shall be no higher than RL 29.770.

6. The eve/gutter line at the street front of the building shall be at one continuous plane with the same eve overhang as that proposed for the western side.

1. These conditions are more appropriately addressed through other conditions of consent relating to the changed roof form.

7. The floor to ceiling heights of the second storey being a maximum of 2.4m.

1. This condition is unnecessary given to compliance with the council's requirement for height.

12. The pier on the north-eastern corner of the building where lounge room and northern terrace connect shall be removed.

1. This condition is unnecessary given a minimal improvement it would have on increasing the views from the adjoining property.

Orders

1. The orders of the Court are:

1. The appeal is upheld.

2. Development Application 2010/1070 for alterations and additions to an existing dwelling house at 7 Elgin Street, Woolwich is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of exhibit A.

__________

G T Brown

Acting Senior Commissioner

Decision last updated: 02 March 2012