Farrell Coyne v Woollahra Council

[2008] NSWLEC 1387

Land and Environment Court

of New South Wales

CITATION:	Farrell Coyne v Woollahra Council [2008] NSWLEC 1387
PARTIES:	Applicant: Farrell Coyne Projects Pty Ltd Respondent: Woollahra Council
FILE NUMBER(S):	10504 of 2008
CORAM:	Roseth SC
KEY ISSUES:	Development Application :- view impact
CASES CITED:	Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Veloshin v Randwick City Council [2007] NSWLEC 428
DATES OF HEARING:	26 September 2008
DATE OF JUDGMENT:	8 October 2008
LEGAL REPRESENTATIVES:	Applicant: Mr G Green, solicitor of Pikes Lawyers Respondent: Mr P Rigg, solicitor of Deacons

JUDGMENT:

- 8 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Roseth SC

8 October 2008

10504 of 2008 Farrell Coyne Projects Pty Ltd v Woollahra Municipal Council

JUDGMENT

1 Senior Commissioner: This is an appeal against the deemed refusal of a development application to demolish the existing building and erect a three-storey dwelling house on lot 1 DP 958468, known as 3 Vaucluse Road (and also 2A Gilliver Avenue), Vaucluse.

The site

2 The site has an area of 800.7m2.. It has two frontages: to the west to Vaucluse Road and to the east to Gilliver Avenue. It falls about 8m from east to west. To the south is 1 Vaucluse Road, on which a new house is under construction. The surroundings are mostly single houses, of which the old ones are modest in size, while the recently built ones are anything but. There is a sprinkling of old apartment buildings.

The proposal

3 The applicant proposes to demolish the existing structures on the site and erect a new house on three levels, with two double garages, one from Gilliver Avenue and one from Vaucluse Road. The proposal is single-storey from Gilliver Road and three-storey from Vaucluse Road.

Relevant planning instruments and policies

4 Local Environmental Plan 1995 (the LEP) zones the site 2(a). The LEP establishes a maximum height of 9.5m for the site, which is a development standard with which the proposal complies. It also establishes a maximum Floor Space Ratio (FSR) of 0.55:1 for the site. The proposal has a FSR of 0.72:1.

5 Residential Development Control Plan (the DCP), which deals with the number of storeys at C4,14.7.3 as follows:

Development is to have a maximum height of two storeys. Where the landform of a site falls more than two metres from the street to the rear of a property, an additional basement storey may be permitted, provided that all other RDCP controls are met.

6 State Environmental Planning Policy 1 – Development Standards (SEPP 1) under which the applicant has submitted an Objection to the strict application of the FSR development standard of 0.55:1.

Matters in contention

7 In its Statement of Contentions the council listed four matters, of which the last is the objectors’ concerns. Of the other three matters, only the first one was pressed at the hearing, namely that the height, bulk and scale of the proposal will have a detrimental impact on views from 1, 3, 3A and 5 Gilliver Avenue. The council’s position was that it would accept the proposal, including its non-complying FSR, if it were 1.2m lower. The applicant does not accept this, arguing that lowering the building would spoil the views from the upper floor.

The objectors’ concerns

8 The Court heard the evidence of five objectors, four of whom were concerned about the proposal’s impact on their views of Sydney Harbour. Mr S and Mrs M Scarlis, who live at 3 Gilliver Road, are concerned about the impact on views from their ground floor, which contains the porch and living areas. (There is no impact on views from the first floor, which contains the bedrooms, and from the roof terrace.) They will accept some view obstruction, but wish to retain the view of Shark Island and the water around it.

9 The Scarlis’ have commissioned Peter Bolan Surveyors to identify the relative level of the proposal required to retain this view. The surveyor found that the floor levels of the proposed building would have to be 1.2m lower than currently proposed. The council and the applicant accept the accuracy of the surveyor’s finding; however, the surveyor was not an expert in the case and his evidence was not tested.

10 The Scarlis’ have commissioned also JPR Architects to prepare photomontages of the view impact. The parties accepted the accuracy of the montages. I have no option but to accept that the montages are correct. I note in passing that this is material that should have been produced by the applicant and prepared by an expert agreed to by the parties.

11 The photomontages indicate that the proposal will obscure the interface between the water and Shark Island, when viewed from the porch. It will obscure most of the island when viewed from a sitting position in the living room. It will preserve most (though not all) of the island when viewed from a standing position in the living room. The Scarlis’ consider the impact unacceptable and want the proposal lowered by 1.2m, as this would retain their view of Shark Island from a sitting position.

12 During the course of the hearing the applicant offered a lowering of the roof by 600mm for part of the building, an amendment that is illustrated in version C of the drawings. The effect of the change offered by the applicant is not sufficient to retain the view of Shark Island from a sitting position in the living room, though it just retains it from a standing position.

13 Mr Starr, who lives at 1 Gilliver Avenue, said that his views of the Harbour would be entirely eliminated by the proposal. JPR Architects prepared three photomontages illustrating the view impact on this property. The photographs show that from a standing position on the first balcony, the proposal will obscure a substantial area of water. (A substantial area of water has already been obscured by the house now under construction at 1 Vaucluse Road.) From a standing position on the second balcony the impact is somewhat worse. From a standing position in the entry porch, the impact is similar to that on the second balcony. With the lowering of the roof as indicated in version C plans, the impact will be slightly reduced.

14 I note that there was agreement between the experts that the worst view impact fell on 3 Gilliver Avenue. I do not agree with this; in my opinion, the worst impact falls on No 1. The reason is probably that the floor level of 1 Gilliver Avenue, being an older building, is lower than the floor level of newer buildings, such as No 3. This is a problem for 1 Gilliver that is difficult to solve. Development of the western side of the street to any reasonable height is likely to deprive it of much of its water views.

15 Mrs Hedy Ludwig, who lives at 3A Gilliver Road, is concerned with the loss of views. In her case, the view loss will be minor, at least in comparison with the impact on Nos 1 and 3. This is also the case for 5 Gilliver Road.

16 2B Gilliver adjoins the subject land to the north. Mr John Luey owns the property. Mr C Blyth, a consultant planner, put Mr Luey’s concerns to the Court. The applicant has responded to two of the concerns by the placement of privacy screens. The council did not support the third concern about the depth of the proposed building. I accept the council’s position.

The expert evidence

17 The council’s planning expert was Mr D Waghorn, a team leader with the council. The applicant’s planning expert was Mr S Harding, a consultant planner. As mentioned above, the experts agreed that the critical issue in the case was view impact and the critical impact was that on the view of Shark Island from a sitting position in the living room of 3 Gilliver Road.

18 As mentioned above, Mr Waghorn and Mr Harding accepted the accuracy of the photomontages representing view impact. Mr Waghorn supported Mr and Mrs Sarlis’ opinion that the proposal should be lowered by 1.2m in order to preserve the full view of Shark Island from a sitting position in the living room of 3 Gilliver Road. In his written evidence, Mr Waghorn justified his position by the fact that the proposal exceeded the maximum permissible floor space by about 140m2. However, when questioned by the Court whether he would accept the current levels of the proposed house if it complied with the maximum FSR, he replied in the negative. I conclude from this response that Mr Waghorn’s position (that the proposal should be lowered by 1.2m) is independent of the non-compliance with the maximum FSR. Rather, it appears to be based on an assessment of what is a fair distribution of views between the proposal and No 3.

19 I turn to the non-compliance with the maximum FSR, which seems both to be and not to be an issue in the case. The council’s Statement of Contentions mentions several non-compliances including that with the FSR standard; however, the contention is made only in the context of view impact. The applicant has submitted an Objection under SEPP 1 to the strict application of the FSR standard on the grounds that the additional floor space is at basement level and does not add to the building’s bulk. Neither the council’s bundle of documents nor Mr Wagstaff’s evidence has referred to the objection, so I assume that the council has no quarrel with it. It is therefore an uncontested issue on which I am not required to make a finding. I make the observation, obiter dictum, that each time the council fails to apply its FSR standard consistently with the provisions of the LEP, it makes it more difficult for itself to apply it in the future.

20 The applicant argues that it could easily comply with the FSR development standard by removing floor space from the basement level and this would have no effect on the view impact. Mr Waghorn responds that the council expects the non-complying floor space to be removed from the top floor where it would reduce the view impact. Mr Waghorn relies on an observation I made in Veloshin v Randwick City Council [2007] NSWLEC 428 in respect of a similar dispute, ie where an applicant has argued that it could remove excessive floor space from the lowest floor thus continuing to have the same impact on its neighbour as before. The observation was:

It is true that it would be possible, if one tried hard enough, to design a building that complies with the maximum FSR and causes just as much overshadowing of No 33A. However, it is reasonable to assume that a complying proposal would not include the first floor of the rear section, thereby reducing the overshadowing, as well as the visual impact on No 33A

21 The current proposal is quite different from that in Veloshin, which was a three-storey building on a flat site without views, where the top level did not have particular advantages over the lower levels. In Veloshin a designer would have had to strain him-or herself to reduce the floor space of the building and keep the same impact on the neighbour. In the present case the natural way to design is to maximise the floor area at the top level, which receives the best view of Sydney Harbour.

22 I return to the main topic, which is the view impact on Shark Island from 3 Gilliver Road. I have already referred to Mr Waghorn’s opinion that the proposal should be lowered by 1.2m. Mr Harding’s position is that the view impact on No 3 is reasonable and the levels of the proposal should not change, apart from the small change offered in version C of the plans. Both sides drew comfort from the planning principle on view sharing in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, so it is useful to apply the principle here.

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.
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.
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.
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

23 In respect of the first step, the view to be affected is that of Shark Island, which is an icon. The view is clearly valuable. In respect of the second step, the view is obtained from a sitting position. As the second paragraph of the planning principle states, the expectation to protect sitting views is often unrealistic. In respect of the third step, I assess the view loss as moderate. I am aware that Mr and Mrs Scarlis consider the view loss as severe or perhaps even devastating. The reason for my assessment of the loss as moderate is partly because the standing view of Shark Island is likely to be substantially preserved, and partly because there remain magnificent and unaffected views from the bedroom level as well as the roof terrace. The roof terrace is a place where guests can be entertained.

24 I turn to the fourth step, the assessment of the reasonableness of the proposal. The proposal is well below the 9.5m height limit. It has one level above Gilliver Avenue, where the DCP allows two. If the proposal were 9.5m high and had two levels above Gilliver Avenue, it would obliterate all of the views from the living areas of 3 Gilliver Avenue, including the top of the arch of the Harbour Bridge. Could a more skilful design provide the applicant with the same development potential and amenity while reducing the view impact on No 3? The lowering of the proposal by 1.2m would achieve the same development potential; however it would reduce the amenity because of the impact of an existing building at 10 Vaucluse Road, which intrudes into the view and would intrude more if the floor level were lower. That intrusion is likely to spread in the future as the modestly developed sites to the north of 10 Vaucluse Road are redeveloped to the large mansions that are usual in present-day development of Vaucluse.

25 In line with the planning principle in Tenacity, I conclude that the view impact of the proposal is acceptable. There is no justification to require it to be lowered by 1.2m.

Orders

1. The appeal is upheld.

2. Development application to demolish the existing building and erect a three-storey dwelling house on lot 1 DP 958468, known as 2A Gilliver Avenue, Vaucluse is determined by the grant of approval subject to the conditions in Annexure A.

3. The exhibits are returned except Exhibits 10, A and C.

__________________
Dr John Roseth
Senior Commissioner