Furlong v Northern Beaches Council

[2022] NSWLEC 1208

Land and Environment Court

New South Wales

Medium Neutral Citation:

Furlong v Northern Beaches Council [2022] NSWLEC 1208

Hearing dates:

17-18 February 2022

Date of orders:

22 April 2022

Decision date:

22 April 2022

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Development Application DA2021/0517, which seeks the grant of consent for alterations and additions to a residential dwelling at 55 Wheeler Parade Dee Why, is refused.
(3) The exhibits are returned with the exception of Exhibits 1, A and C which are retained.

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to a dwelling house – view loss – balancing view loss in instances of general compliance with other relevant controls – design alternatives

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 8.7

Environmental Planning and Assessment Regulation 2000, cl 55

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

Warringah Local Environmental Plan 2011, cl 1.2

Cases Cited:

Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85
Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140
Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321

Wang v North Sydney Council [2018] NSWLEC 122

Texts Cited:

Land and Environment Court, COVID-19 Pandemic Arrangements Policy, 1 December 2021

Warringah Development Control Plan 2011

Category:

Principal judgment

Parties:

Antaine Seamus Furlong (Applicant)
Northern Beaches Council (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
S Patterson (Solicitor) (Respondent)

Solicitors:
Hones Lawyers Pty Ltd (Applicant)
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2021/277647

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against Northern Beaches Council's refusal of Development Application DA2021/0517, which seeks the grant of consent for alterations and additions to a residential dwelling at 55 Wheeler Parade, Dee Why (site).

Site and setting

2. I rely on Council’s Statement of Facts and Contentions filed 17 November 2021 (Ex 1) and the applicant’s reply statement filed 7 December 2021 (Ex B) for much of the factual material in this and the following two sections.

3. The site is legally described as Lot B in DP 338618. It is a battle-axe lot with its “handle” providing access towards the east and Wheeler Parade. Otherwise, the site is generally rectangular in shape. It is about 18.6m wide and has a depth of some 40.3m (excluding the access handle). The site has a surveyed area of 885.2m².

4. The site accommodates a three storey dwelling with a garage at entry level and two stories above. A swimming pool is on the middle level. The dwelling is located towards the west of the site, offset some 1.74m from the rear boundary (Plans tendered as Ex A Sheets 0328/DA 02/G and 0328/DA 10/G). The site slopes upwards towards the north-western corner with a rise of approximately 3m. However, the eastern portion of the site comprises a relatively level area, consisting of a driveway and grassed area. The site is devoid of any significant canopy trees. There are low lying shrubs evident and two recently planted trees adjacent to the northern boundary.

5. Development surrounding the site consists of one, two and three storey dwelling houses of various ages. According to Ex 1, the nearby dwellings are gradually being developed and updated, with many of these designed and located to capture the coastal views. Immediately to the west of the site is a public reserve known as Wingala Reserve. To the immediate north is 51A Wheeler Parade which accommodates a three storey dwelling (garage under, with two stories above). The view loss from this property is the central issue in the proceedings. To the immediate east is a single storey dwelling, to the south-east is a single storey dwelling and to the south are two and three storey dwellings.

Proposal

6. The application proposes:

1. Alterations to what is described as the lower ground floor including changes to the garage and stairs, and addition of a gym, laundry and cellar.

2. Alterations to what is described as the ground floor including:

• demolition of existing pool (now located more on the northern side of the dwelling) and construction of a new pool on southern side and an associated deck.

• floor plan changes to provide for five bedroom, each bedroom consisting of an ensuite.

• a corridor, and large covered area described as “feature landscape”, separates the main or master bedroom from the rest of the dwelling.

3. Alterations to what is described as level 1 to include kitchen dining room, living room and outdoor living area.

Planning controls

7. The site and the nearby residential areas are zoned R2 Low Density Residential under Warringah Local Environmental Plan 2011 (WLEP). Wingala Reserve, to the rear of the site, is zoned RE1 Public Recreation.

8. The proposed development is permissible with development consent in the R2 Low Density Residential zone. The zone objectives are:

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

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

•  To ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah.

9. The proposal contravenes the height of building standard in WLEP, although nothing of significance to the merits of the application turn on this.

10. Warringah Development Control Plan 2011 (WDCP) applies to the site.

Proceedings

11. As the appeal is related to a detached single dwelling, the proceedings were subject to the provisions at s 34AA of the Land and Environment Court Act 1979 (LEC Act) and, as such, commenced with mandatory conciliation, which occurred on-site. The parties were unable to reach agreement. As a consequence, and in accordance with s 34AA(2)(b) of the LEC Act, the conciliation conference was terminated and a hearing was held forthwith.

12. During the site inspection, the opportunity was taken to hear objecting submissions. In the case of the objecting submission from the owners’ of 51A Wheeler Parade, there was an opportunity to experience the views available from within this property. Otherwise the proceedings were conducted under the guidance of the Court’s COVID-19 Pandemic Arrangements Policy (December 2021) using, principally, the Microsoft Teams platform. At the commencement of the hearing, the parties consented to objector evidence, and other material forthcoming during the site inspection, forming part of the evidence in the proceedings.

13. During the proceedings the Court, exercising the function of Northern Beaches Council as the relevant consent authority under cl 55(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), agreed to the applicant amending the development application to accord with the plans tendered into evidence as Ex A in these proceedings. The parties have subsequently advised that the amending plans have been lodged on the NSW Planning Portal. Therefore the two requirements of cl 55(1) of the EPA Regulation have been completed, with respect to amending a development application, and the Ex A plans constitute the plans before the Court in these proceedings.

14. I will also introduce the two town planning experts providing evidence at the hearing: Mr N Juradowitch was engaged by the applicant and Mr J Davies was engaged by Council. The joint report prepared by these experts was tendered into evidence as Ex 3.

Issues

15. Council raised three contentions in Ex 1 as follows: view impact, visual bulk/scale and public interest. The third contention principally related to lay submissions. Be that as it may, the major issue in these proceedings is view impact, and it is determinative in this instance. It will be seen that the question of the building’s visual bulk and scale is centrally concerned with implications for view loss. The lay submission of most concern was also related to view impact.

View impact

Policy setting and the Tenacity principles

16. The policy provisions referred to by Council when outlining its concerns in relation to this matter at Ex 1 are reproduced relevantly below. The highest order provision which was referenced was at cll 1.2(d)(i) and (ii) of WLEP:

1.2 Aims of Plan

…

(2) The particular aims of this Plan are as follows—

…

(d)  in relation to residential development, to—

(i)  protect and enhance the residential use and amenity of existing residential environments, and

(ii)  promote development that is compatible with neighbouring development in terms of bulk, scale and appearance

17. Provisions of WDCP were also referenced, in particular in relation to cll D7 and D9 concerned with view impact and building bulk respectively. The relevant provisions of cl D7 are as follows:

“D7 Views

…

Objectives

• To allow for the reasonable sharing of views.

• To encourage innovative design solutions to improve the urban environment.

• To ensure existing canopy trees have priority over views.

Requirements

1. Development shall provide for the reasonable sharing of views.”

18. There is a diagram under the commentary at cl D7 entitled “an example of view sharing on a flat site” and showing view lines using arrows. The applicant noted in submissions that none of the arrows in the diagrams showed views over side boundaries.

19. Within this section of WDCP reference is made, by way of a “note”, to the Court’s Planning Principle on views as established in Tenacity Consulting Pty Ltd v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 (‘Tenacity’) at [25]-[29]). While having questionable weight in terms of WDCP as a “note”; the experts, as is typical in such matters, relied quite heavily on Tenacity when compiling their written evidence.

20. I will, initially, reproduce the Tenacity steps here, emphasising (by underlining) the central point of each step [26]-[29]:

“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.”

21. Council also saw the proposal as inconsistent with the objectives of cl D9 of WDCP which are as follows:

“• To encourage good design and innovative architecture to improve the urban environment.

• To minimise the visual impact of development when viewed from adjoining properties, streets, waterways and land zoned for public recreation purposes.”

22. It was the second of the listed requirements which was cited by Council in Ex 1:

“Large areas of continuous wall planes are to be avoided by varying building setbacks and using appropriate techniques to provide visual relief.”

23. I can note here that Mr Davies evidence in relation to cl D9 was concerned with the implications of the length and setback of the northern façade of the proposed building to the loss of views from 51A Wheeler Parade. That is to say there is no evidence to suggest the characteristics of the northern façade of the building required additional “techniques” to provide “visual relief” for those viewing it.

Evidence

24. As observed during the site inspection, the dwelling at 51A Wheeler Parade occupies three levels. Drawings of this dwelling were tendered into evidence (behind Tab 3 of Applicant’s further bundle of documents filed on 18/2/2022 (Ex E)). There is a ground level accommodating parking, a home theatre area, along with utilities and the like. What is termed the entry level is principally occupied by the main living areas of the home. What is described as the top level has four bedrooms, along with two bathrooms. The entry level also accommodates an area described by the experts as Bedroom 5/Home Office, which is at the north-eastern extremity of the dwelling. Bedroom 5/Home Office is linked to the living areas by a short corridor which also provides access to a bathroom and laundry. Bedroom 5/Home Office is currently “highly used” as a study by one of the owners. Bedroom 5/Home Office has windows on north, east and south-facing walls.

Figure 1 – Photo of Bedroom 5/Home Office standing position (source: Ex 3 App G).

Views to be affected

25. There was considerable agreement between the experts in regard to the objective factors involved in the first two steps of Tenacity. For my purposes, I concentrate on the room described by the experts as Bedroom 5/Home Office when considering the first Tenacity step. A photo of the room is provided at Figure 1. There is also a contention relating to view loss to Bedroom 2, which warrants less attention, particularly given agreed conditions of consent (filed without prejudice) in regard to limiting the extent of a proposed privacy screen.

26. The experts referred to a view effects analysis prepared by specialists Richard Lamb and Associates which formed App E to Ex 3 (RLA Analysis) to articulate certain particulars of the views to be affected. The RLA Analysis included photo imaging from three positions within Bedroom 5/Home Office. The Photo 1 View was a representation from the south-west corner of the room and viewed to the south-east. The Photo 2 View was from the centre of the room viewing south and south-east. The Photo 3 View was at the eastern extremity of Bedroom 5/Home Office again viewing out of the south-facing window. Each are standing views, with the experts noting that from seating positions within the room the higher window sill on the south facing window would mean only sky views would be available.

27. The RLA Analysis provides a representation of the effect of the proposal on available views, but also the effect of development in accordance with DA 2019/1175. DA 2019/1175 was granted consent by the Court on 22 October 2020, after a conciliated agreement under s 34 of the LEC Act. It is noteworthy that the commentary of the experts in Ex 3, to a point at least, assume the view loss which would occur from DA 2019/1175 as something of a starting point for their evaluation of the view effects of the current proposal. To assist this, it appears that Council requested the applicant erect height poles representing the north-western corner of both the current proposal and that approved under DA 2019/1175 (Ex 3 App H p 2). While I can note and do give consideration to the marginal change in view loss between the current proposal and that from DA2019/1175, I am most interested in the impact of the current proposal on the existing setting (see [48]).

28. The particulars of the existing views within Bedroom 5/Home Office which are available now and would be impacted upon by the proposal can be gleaned easily enough from the advice of the experts, the RLA Analysis and from my own observations during the site inspection. Of most note to me were the panoramic views to the North Head environs, Curl Curl Beach, the ocean and horizon, along with foreground suburbs. These views would be highly valued and I accept the opinion of the experts that the view of the North Head peninsula is an “iconic view” (Ex 3 p 5).

29. I commence my own evaluation of views to be affected with the Photo 1 View from the RLA Analysis. Something less than 1/3 of the existing view, and in my opinion that of least value, would be retained from the Photo 1 View were the proposal to go ahead. I accept the view of the experts that the remaining view, after accounting for the proposed development, provides for a limited view corridor and would be of relatively low value. However, this view would open up somewhat as one moved towards the centre of the room.

30. The Photo 2 View at present includes an area of North Head and Freshwater Headland and the ocean water interface and would be reasonably described as highly valued. The best of this view is from a louvre windowed section on the eastern side of the window. It is clear that all of the Photo 2 View out of the southern window would be lost with the proposal. I accept the advice of the experts that at the Photo 2 View position, there is also a water view available through the east facing window at present and from both a sitting and standing position which would be retained. I accept the advice from Mr Davies that this view was not available due to off-site vegetation (since cleared) during his somewhat recent site visit, but even as it presented during the Court site inspection, this view is partial and of much less value than the view from the southern window.

31. The Photo 3 View shows the existing view out of the east facing window to Curl Curl Beach including a section of beach/wave/ocean interface and horizon, which I agree with the experts is of high value, and available both in a sitting and standing position. A little less than half of this view would be lost with the proposal according to the analysis. When considering the Photo 3 View the experts included the following in their commentary (Ex 3 p 6):

“…The planners agree it is likely that in the future that [an existing single storey cottage immediately south of the site] will be demolished and redeveloped with a larger 2 storey dwelling, with a minimum rear setback of 6m, which will obstruct the existing ocean and ocean/horizon view in this location to a similar extent as the proposed development. Accordingly, having regard to this likely outcome, the planners agree that the proposed development at No. 55 Wheeler Parade will have a relatively minor impact on views through the east facing window in the medium to longer term.

The planners agree that the existing and retained view of Curl Curl beach and the beach/wave interface is dependent on the vegetation to the left of the height pole remaining trimmed as currently existing. Previously this beach view was obstructed prior to the vegetation being trimmed. The Applicant has no control over this vegetation as it is not located within the development site.”

32. The quote above raises the more general risks to views associated with: (1) the outcome of future development south and south-east of the site, and (2) the extent that vegetation might be expected to block the view out of the east facing window.

What part of the property the views are obtained?

33. The second Tenacity step requires consideration of what part of the property views are obtained. Given my attention to Bedroom 5/Home Office, it requires attention to the fact that the view loss from Bedroom 5/Home Office is: (1) across a side boundary (which is more difficult to protect than front and rear views according to Tenacity) and (2) not from what might be generally understood as a living area (views from living areas and kitchens should be seen as more significant and highly valued according to Tenacity).

Extent of impact

34. The third Tenacity step raises the assessment of the extent of impact. The assessment is to be from the property as a whole including from viewing positions not affected by the proposal. It is clear that there are good views available from Bedroom 2 and the Master bedroom balcony on the upper level of the dwelling at 51A Wheeler Parade. The view loss from Bedroom 2 was raised as a contention by Council, but the view loss from the master bedroom balcony was not. Bedroom 2 presently has similar views to Bedroom 5/Home Office. The experts describe it as “an existing standing view containing the ocean, horizon/sky, North Head and Curl Curl Beach, parkland and existing dwellings in the locality” which is “highly valued” (Ex 3 p 7). Photo View 4 from the south-west corner of Bedroom 2 shows the proposal would result in the loss of all of the foreground view. The ocean view to the horizon would remain, but the nearer beach/ocean interface view would be lost.

35. The RLA Analysis also considered the view impact from a small balcony off the master bedroom (to the east) at 51A Wheeler Parade. The southern view from the balcony is of North Head, Freshwater Headland, Curl Curl Beach, the ocean and ocean horizon and includes distant views to the eastern suburbs. The view was agreed to be of high value by the experts. The proposal would block much of the foreground and some of the land water interface. Almost all the ocean view would be retained. It is noted that this balcony and the master bedroom windows at 51A Wheeler Parade also have eastern and northern water views, including towards Long Reef.

36. There are limited views, otherwise, from within the dwelling at 51A Wheeler Parade. Partial views towards Long Reef (north-east) are available from within the living room and its balcony. There are bush views to the west. There is an eastern window within Bedroom 5/Home Office which also has a much lesser view.

37. Mr Davies concluded his commentary in regard to the third Tenacity step by assessing the view loss from Bedroom 5/Home Office as devastating and B2 as severe. It was assessed that there would be a minor impact only from the Master Bedroom balcony at 51A Wheeler Parade.

38. Using a table, Mr Juradowitch drew attention to each of the rooms and other areas of the dwelling at 51A Wheeler Parade where there would be no impact. When considering the extent of the impact over the whole of the property, as required under step three of Tenacity, and mindful that impacts were limited to secondary rooms, no unreasonable impact was found by Mr Juradowitch, as indicated in the following commentary (Ex 3 App F p 14):

“Firstly, it is to be noted that all of the views obtained [from] a property are to be considered. No. 51A has significant and panoramic unaffected views to the North and East, from the master bedroom and adjoining balcony. Good quality views are also available through the eastern windows of Bedroom 2 and Bedroom 5/Home office and North head views are retained through the south facing window of Bedroom 2. West facing windows enjoy an attractive view across the adjoining bushland reserve. As can be seen in the table above, apart from the south facing windows of bedroom 2 and bedroom 5/Home office, the proposal has no view impact on the other rooms at No. 51A Wheeler Parade, and at most a minor reduction in southeast views from the master bedroom balcony.

In my opinion and having regard to the unaffected views available to No. 51A, the impact on the views from the 2 south-facing windows of the secondary rooms (bedroom/bedroom/home office) across a side boundary over the primary building envelope area should not be given determinative weight.”

Reasonableness of the proposal that is causing the impact

39. Step four of Tenacity requires an assessment of the reasonableness of the proposal that is bringing about the impact. Whether or not the proposal is “complying” is a point of attention. Briefly here, the proposal can be thought of as complying with the numerical controls which have a relationship to view loss.

40. Otherwise in regard to step 4 in Tenacity, Mr Juradowitch emphasised the proposal’s compliance with numerical controls. He opined that there was no more skilful design that would achieve the same, let alone better, amenity for the proponents. His reasoning included that (Ex 3 App F p 16):

“… any other design would render unavailable the views obtained by the master suite, as proposed and reintroduce the privacy and acoustic impacts that the proposal has skilfully side stepped and obviated. An important reason for relocating the master bedroom suite to the northern side of the site was to provide greater certainty that views to the south and southeast can be maintained. In the approved location, if the somewhat outdated dwelling to the south at No.94 Headland Road is redeveloped in a similar manner to the large dwelling at No. 98 Headland Road, views from the master bedroom suite, if located adjacent to the southern side boundary, would be obstructed. The relocation of the master bedroom suite, as proposed, will at least retain a view to the southeast.”

41. Having already argued the fact of the view available from 51A Wheeler Parade being across the side boundary and to a “secondary room”, and that “there is not an inalienable right to retain existing views” (Ex 3 p 9), Mr Juradowitch posited that (ibid):

“In the absence of there being a more skilful design, and even if the impact on views caused by the proposal is devastating, the impact is, nevertheless, one that is both expected and reasonable.”

42. Having regard to the fourth Tenacity step, Mr Davies noted the design configuration with respect to the proposed master bedroom, the room which has been agreed as bringing about the key impact, and argued that there was a more skilful design solution available to suit Tenacity principles (Ex 3 App H p 5):

“In this circumstance, there is considered to be a design solution that could retain at least a portion of the southern coastal views for the neighbouring property, whilst retaining the key design features and amenity for the proposed development, which include the master bedroom design. The proposal includes an 8.7m long internal landscape courtyard and adjoining corridor of equal length leading to the master bedroom. Redesign of this area could easily accommodate a master bedroom of similar floor area and result in an equal view impact to that of the LEC approval resulting from the master bedroom design.”

43. Mr Davies also offered an opinion that development in accordance with DA 2019/1175 represented “the limit of what would be considered a reasonable view sharing outcome” (Ex 3 p 12). Mr Davies saw a satisfactory privacy outcome was available were the proposed master bedroom positioning to accord with DA 2019/1175. In App J to Ex 3 Mr Davies also examined the implications of retaining the master bedroom at its current offset from the northern boundary, while still retaining the view available to Bedroom 5/Home Office from DA. It would require the master bedroom to be shifted a further 3.5m to the west, which would bring about a reduction of the size of the corridor and landscaped area of that same dimension (Ex 3 p 15). Mr Davies acknowledged Council’s ambitions to retain significant rock outcrops under cl E6 of WDCP, but his opinion was that this particular rock outcrop was “not of such landscape significance that would warrant a building to be designed around it and create the resulting view impact” (Ex 3 p 13).

44. Mr Davies acknowledged the fact that the views are obtained over a side boundary and the proposal is compliant with the front setback control. But suggested the setting was out of the ordinary with “both sites being a battle-axe allotment and both sites obtaining high value views over the side boundary” and that the dwelling on the site (were the alterations and additions to be approved) would continue to enjoy the benefits of the reduced rear setback (indicated as 1.74m) (Ex 3 p 14).

45. Mr Davies also acknowledged under cross examination that the proposal before me would be superior in regard to its privacy impacts to the south and that having regard to likely future development to the south, there would be a better view available from the master bedroom with the proposal before me than would development in accordance with DA 2019/1175.

Consideration

Note on submissions of the parties

46. The applicant suggested in closing submissions that because of failings in second and third steps of Tenacity, there was no need to give consideration to the fourth step. It was also suggested that refusal of the proposal on view loss would require a reversing of Tenacity. Among the applicant’s conclusions was that, under Tenacity, it was not reasonable to expect that the view from Bedroom 5/Home Office at 51A Wheeler Parade could be retained. It was suggested that weight should be given to the fact of the proposal’s general compliance with relevant controls and that the amenity outcomes for the proposal could not, on the evidence, be matched by, say, the design alternatives suggested by Mr Davies.

47. In its closing submissions, Council pointed to the “irony” of the proposal itself, seeking to secure views from a bedroom across a side boundary, and at the expense of existing views available from Bedroom 5/Home Office at 51A Wheeler Parade across its common side boundary with the site. Questions were also raised about “future proofing” a proposed bedroom at the cost of impacts on existing views enjoyed by neighbours.

Note on the relevance of the existing approval for DA 2019/1175

48. In my opinion, and if assistance to the Court is the objective, in their expert report the planning experts give much more than sufficient attention to the comparison between the approved development under DA 2019/1175 and what is proposed with the application before me, in regard to impacts. While I accept that the current consent, and even for that matter a complying development certificate issued in regard to the site, are matters that the Court shall have regard to under s 39(4) of the LEC Act (Abrams v The Council of the City of Sydney (No 2) [2018] NSWLEC 85 at [35] – [38]), there are limits to the relevance of any existing development consents to merits evaluation. The obligation upon me, among other things, is to evaluate the application before me by assessing the impact of the proposal on the environment existing at the time of determination. This was made clear by Preston CJ in Tuite v Wingecarribee Shire Council (No 2) [2008] NSWLEC 321 (‘Tuite’) at [56]:

“With respect to the Commissioner, it was difficult to see how the Commissioner could have used the 1995 consent conditions, which had not been implemented, to set aside his findings as to the impact of the development proposed in the development application before the Court. The Commissioner, exercising the functions of the consent authority, found that the impacts of the proposed development are unacceptable and the development application should be refused. He could not come to a contrary conclusion because a previous development consent would, if implemented, lead to the same or similar impact.”

Consideration of reasonable view sharing - Tenacity principles are evaluation guides

49. When I consider the view loss question and its evaluation, I first note the provisions at D7 of WDCP and its objective “(to) allow for the reasonable sharing of views”. Then, I turn to the Tenacity principles. Clearly, these principles are not part of the law. They should be seen as a useful guide for evaluation purposes. The terminology in Tenacity is itself less about prescriptions (here I disagree with the applicant’s closing submissions relating to the force of Tenacity), and more about guiding.

50. For example, in considering the second Tenacity step:

1. To say “the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries”, does not mean the protection of views across side boundaries is not appropriate in some circumstances, and

2. For the retention of side views to be “often unrealistic”, does not mean it is always unrealistic.

51. To turn to the fourth Tenacity step: to suggest a complying development (in instances where the same development potential and amenity outcomes are not available through a design alternative) “would probably be considered acceptable and the view sharing reasonable”, does not mean it would always be considered acceptable.

Severe view loss impact to 51A Wheeler Drive

52. In my opinion the proposal would bring about a devestating view loss to the southern window to Bedroom 5/Home Office. I note the window has a higher sill and views available are from a standing position. But the window is large and the sill height is not so high as to restrict standing views whatsoever. The views from other windows within the room do not approach its view quality.

53. I note that Bedroom 5/Home Office is not part of the living area or well used kitchen area of the dwelling, and it is not a consideration for me that there appears to be a particularly high level of day time use of the room at present. The applicant is right that the question under examination is not about the personal use of the room now, but about the objective facts. When I consider the factual setting, there is the obvious potential for use of Bedroom 5/Home Office as a bedroom, a use from which views should not be unreasonably discounted (the same use which the application before me seems to value considerably in regard to view opportunity). There is also the potential for use as a study or office. The potential for these kinds of uses is considerable and somewhat related to its practical handiness to kitchen and other “living areas” within the dwelling (ie differentiated from the other bedrooms which are all upstairs). The use of the space as a guest room also came up in evidence. The potential for this use relates to its sense of separation and bathroom access. There was some degree of agreement on the part of the planners that modern times seem to be providing for more work from home, although no empirical evidence was provided on this.

54. In my opinion, the rest of the views from 51A Wheeler Parade are generally quite incomplete, or in the upstairs sleeping area of the home and are of lesser value for that.

55. Tenacity reasonably adopts the position that the extent of view loss impact should be assessed from the property as a whole. In this case it is my finding that because of the impact on the panoramic views available from the southern window to Bedroom 5/Home Office the proposal would bring about a severe view loss to 51A Wheeler Drive.

The proposal’s reasonableness and design alternatives

56. An applicant is entitled to try to optimise its ambitions, in the matter before me here it is concerned with bringing about amenable alterations and additions to a residence. This litigation is particularly concerned with securing amenable views from a master bedroom. In this case there is more than compliance with numerical standards relating to boundary setbacks, and the like. However, compliance with other controls does not, of itself, overcome policy settings aimed at reasonable view sharing, in this case, in accordance with the objectives and requirements of cl D7 of WDCP. It makes sense to me to then that questions be asked of the reasonableness of the proposal which would bring about the severe view loss to 51A Wheeler Parade, including whether there might be design alternatives in regard to the proposal.

57. Indeed, there are some noteworthy considerations in relation to the proposal and its reasonableness when considering the view sharing question. There are two types of considerations which are concerning to me. First is the physical form of the relevant master bedroom addition, of itself. Second is the arguments in justification of it. The physical form aspects of the proposal which draw attention are what Mr Davies describes as “an 8.7m long internal landscape courtyard and adjoining corridor of equal length leading to the master bedroom” (Ex 3 App H p 5). I note the commentary from the applicant’s landscape specialist in support of the internal landscape feature and in particular the retention of the rock outcrop, and drawing a connection with certain WDCP requirements (Ex 3 App D). However, I prefer the opinion of Mr Davies that this rock outcrop is not of such landscape significance that would warrant the building to be designed around it in the circumstances (Ex 3 p 13). The way I see the evidence before me, I do not see any great benefit of the master bedroom’s location at the end of the “8.7m long” corridor, other than related to the view availability from it.

58. This brings me to the second consideration in relation to the proposal’s reasonableness. That is, the arguments which justify the location of the master bedroom. The attention is providing for views from this room at some point in the future rather than the present day setting. That is to say, there is no doubt there would be a highly valued view available from the proposed master bedroom today if the layout where to align with the alternative(s) suggested by Mr Davies. The argument of the applicant justifying the proposed configuration is principally related to “future proofing”.

59. I do at least see some sense in the concept of protecting this master bedroom view from anticipated development of land to the south of the site, some time in the future. But there are two factors which concern me in regard to the reasonableness of the proposal in regard to its proposed future proofing. First is the uncertainty about the timing of any future development of the southern sites. It is unknown whether it will take a year or decades before any view loss is effected. Second is the degree of imprecision about the effects of this future development. At one level this just relates to the unknowns about the design ambitions of future owners. But at an analytical level (or when one tried to interpret views between hypothetical future development offsetting certain distances from boundaries on neighbouring land) there was imprecision on the extent of impact. This was demonstrated when, and in a genuine effort to assist the Court, the applicant undertook some further view loss analysis and discovered that anticipated future view loss, from a configuration which impacted 51A Wheeler Parade to a lesser extent, might not be quite as severe as has been previously surmised (Ex E).

Conclusion

60. Council took me to the findings of Robson J in Wenli Wang v North Sydney Council [2018] NSWLEC 122 (‘Wenli Wang’). I reproduce pars [70]-[71] below:

“70 Applying the fourth step of Tenacity, I repeat that the proposed development complies with the development standards in the LEP and is therefore more reasonable than a development which would have breached them. However, I do also note that there is evidence in the form of the Colville plan that a similar amount of floor space could be provided by a design which reduces the effect on the view from the surrounding properties.

71 I consider there is force in the submission of Council that the applicant has taken a circular approach to the fourth step of Tenacity which presupposes a right to the level of amenity achieved by the proposed development. Whilst it is true that a redevelopment similar to that provided in the Colville plan would not provide the same amenity as the proposed development, it would provide a very high level of amenity and enjoy impressive views.”

61. In the matter before me, I am more inclined to the kind of conclusion expressed at [71] in Wenli Wang. While the proposed development, accommodating the alternative designs suggested by Council (either shifting the master bedroom westwards some 3.5m or sliding the master bedroom to the south to bring about the same view availability effect – see [43]), may not provide the same amenity outcomes as would be the case without such changes, the proposal would still enjoy a very high level of amenity, including in regard to the panoramic views available to the south, especially from living areas. The master bedroom would still enjoy superior views.

62. The proposal would bring about a severe view loss impact on 51A Wheeler Parade when there are reasonable design alternatives which would moderate this impact significantly. The proposal does not pay sufficient regard to cl D7 of WDCP which requires view sharing. The proposal before the Court does warrant the grant of consent in the circumstances.

63. The Court orders that:

1. The appeal is dismissed.

2. Development Application DA2021/0517, which seeks the grant of consent for alterations and additions to a residential dwelling at 55 Wheeler Parade Dee Why, is refused.

3. The exhibits are returned with the exception of Exhibits 1, A and C which are retained.

………………………..

P Walsh

Commissioner of the Court

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Decision last updated: 22 April 2022