Hickey v Newcastle City Council

[2016] NSWLEC 1060

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hickey v Newcastle City Council [2016] NSWLEC 1060
Hearing dates:	3 February 2016
Date of orders:	19 February 2016
Decision date:	19 February 2016
Jurisdiction:	Class 1
Before:	Brown C
Decision:	1.The appeal is dismissed. 2. Development Application 2014/1481 for the construction of a roof and windows to enclose an existing first floor balcony at Unit A101/1 Moroney Avenue, Newcastle East is refused. 3. The exhibits are returned with the exception of exhibits 1 and B.
Catchwords:	DEVELOPMENT APPLICATION: enclosure of existing first floor balcony – view loss – whether breach of floor space ratio standard well founded
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Tenacity Consulting v Warringah [2004] NSWLEC 140
Category:	Principal judgment
Parties:	Mark Hickey (Applicant) Newcastle city Council (Respondent)
Representation:	Counsel: Mr D Grey, solicitor (Applicant) Ms F Burgland, barrister (Respondent)     Solicitors: Sparke Helmore Lawyers (Applicant) Newcastle City Council (Respondent)
File Number(s):	10954 of 2015
Publication restriction:	No

Judgment

1. COMMISSIONER: This is an appeal against the refusal of Development Application 2014/1481 by Newcastle City Council for the construction of a roof and windows to enclose an existing open first floor courtyard of Unit A101/1 Moroney Avenue, Newcastle East or Lot 1 in SP 75975 (the site). Unit A101 forms part of a larger residential flat building (the Moroney Avenue building). The external courtyard to be enclosed has dimensions of around 5m x 4m although the roof area has a greater area as it also covers the stairs from the ground level to the open courtyard.

2. The appeal was subject of a conciliation conference on 3 February 2016 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding forthwith pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii).

3. The council maintains that the application should be refused because of:

the unacceptable view loss, and

insufficient justification for an increase in the floor space ratio (FSR) for the overall development.

4. The council also raised concern over the potential loss of privacy although the council accepted that the inclusion of opaque glass in the windows overcame this concern but raised the additional issue of increased bulk because of the opaque nature of the glass.

The site

5. The site is within an existing seven storey residential flat building and has a frontage to Shortland Esplanade and vehicular access from Moroney Avenue. Unit A101 is a two-storey unit and has expansive views of the Pacific Ocean, in a south-easterly direction, and is within the Newcastle East Conservation Area and within the vicinity of listed heritage items (Newcastle Pavilion and Newcastle Baths)

6. Newcastle Beach is directly opposite the site which encompasses Newcastle Pavilion and Ocean Baths. A residential flat building is immediately adjacent to the site to the north at 1 Scott Street (the Scott Street building). Land immediately east to the site is occupied by Noah's on the Beach (restaurant and short term accommodation development). A number of residential flat buildings are to the east of the site. Tramway Reserve and a mix of low to medium density residential development are located to the north and west of the site.

Relevant planning controls

7. The site is within Zone R3 Medium Density Residential under Newcastle Local Environmental Plan 2012 (LEP 2012). The proposed development is permissible, with consent in this zone. Clause 2.3(2) states that the consent authority must have regard to the zone objectives when determining a development application however the council raised no contention in relation to this clause. Clause 4.4 provides for a maximum floor space ratio of 1.5:1 and cl 4.6 provides the opportunity for an increase in FSR.

8. Newcastle Development Control Plan 2012 (DCP 2012) applies to the proposed development. Part 7.01.09 provides requirements for Views and privacy. The relevant parts are:

Objectives

1. Encourage the sharing of views while not restricting the reasonable development potential of a site.

2. Ensure adequate visual and acoustic privacy for proposed and existing dwellings.

Controls

The following controls relate to view sharing and apply to all development to which this section applies

1. Properties are able to be developed within the established planning guidelines, however, existing views from dwellings are not substantially affected where it is reasonable to design for the sharing of views.

2. Grand vistas and views from dwellings which are recognised and valued by the community are not unreasonably obscured by new development.

3. Views to heritage or familiar dominant landmarks from dwellings are not unreasonably obscured.

9. State Environmental Planning Policy No. 65 - Design Quality of Residential Apartment Development (SEPP 65) applies to the proposed development. Clause 28 requires consideration to be given to the design quality principles in Sch 1 (cl 28(2)(b)) and the publication Apartment Design Guide (ADG) (cl 28(2)(c)).

View loss

The evidence

10. Expert evidence was provided Ms Debra McKendry-Hunt, an architect, for the applicant and Mr Chris Speek, a town planner, for the council. Ms McKendry-Hunt and Mr Speek provided individual expert reports and a joint report.

11. Ms McKendry-Hunt and Mr Speek undertook an in-depth analysis of each apartment within the Scott Street building and the Moroney Avenue building to assess the likely visual impacts the proposed development may have on these units. Copies of the floor plans of these buildings were utilised for the analysis. Ms McKendry-Hunt provided photos of views from multiple units sourced from the internet advertising of units for sale and both experts provided photos of the surrounding site from various site visits. The number of units assessed for view impact was 24.

The Moroney building

12. For the Moroney Avenue building, it was agreed that there will be an impact to the views from the north facing balconies for a total of 10 units (5 at Level 2 and 5 at Level 3). Ms McKendry-Hunt assessed the impact as ranging from negligible to minor whereas Mr Speek has assessed the impact as minor. There is some dispute regarding an additional unit (Unit B201 at Level 2) with Mr Speek finding a likely minor impact whereas Ms McKendry-Hunt suggests a likely negligible impact.

13. With the benefit of the site inspection and an understanding of the proposed development, I am satisfied that the view loss from any unit in the Moroney Avenue building would not be a reason to refuse the application. In coming to this conclusion, I have had regard to the fact that while the balconies that would suffer any loss of views are north facing, the units have their principle view to the south with views of Newcastle Beach, Newcastle Pavilion, Newcastle Baths, the rock platform and an expansive view of the Pacific Ocean. The loss of any views from the rear north facing building is inconsequential when considered against the extensive alternative views from the other side of the units.

The Scott Street building

14. Ms McKendry-Hunt and Mr Speek agree that any potential view loss would be associated with Units 3, 202 and 302 although their assessment finds that the view loss from Units 3 and 202 is acceptable. They agree on the extent of interference to the existing view from Unit 302 but differ on the impact.

15. The views from Unit 302 are firstly, the corner window of the second bedroom corner looking south east and secondly, the eastern portion of master bedroom balcony looking to the south east. Ms McKendry-Hunt and Mr Speek agree that the assessment of these views in isolation is no different to the review of Unit 202 of the Scott Street building and thus both experts agree the that impacts of view loss to these locations are acceptable.

16. The third location is the third bedroom corner window and given the limited size and location of this window, the views are difficult to enjoy without purposefully viewing from a position close to a wall within the room, and the rating given to the part of the unit from which the view could be obtained is low and the impact was acceptable in regard to principles of view sharing.

17. The fourth location is from the master bedroom and this is the location where the experts differed. Ms McKendry-Hunt and Mr Speek agree that the view, as currently available from the master bedroom, includes the water/land interface, the rock shelf and the Newcastle Ocean Baths pavilion. Ms McKendry-Hunt and Mr Speek agree that the proposed development will remove a significant proportion of the view to the rock shelf, which is located some 235m from the window of the master bedroom. lt was agreed that a partial view of the rock shelf will still be visible from the balcony off the master bedroom. It was agreed that the view of Newcastle Ocean Baths pavilion which forms the foreground and the ocean view (distant or background) are both maintained following the proposed enclosure of the courtyard.

18. Ms McKendry-Hunt and Mr Speek agree that the value of the view from the master bedroom is high but differ on the rating of the severity of the impact given the use of the main bedroom. Ms McKendry-Hunt is of the opinion that a view from a bedroom is less important than a view from a living area. She also states that the layout of the unit allows it to function around the living room and larger north facing balcony with views to the heritage listed Parnell Park to the north. The view to the rock shelf and the Newcastle Ocean Baths pavilion are from a bedroom only and the room setting is therefore valued low. Ms McKendry-Hunt rates the impact on views as “moderate”.

19. Mr Speek states that the view from the bedroom is more significant, specifically, having regard to the 4 steps of the principles of view sharing in Tenacity Consulting v Warringah [2004] NSWLEC 140. While the layout of the living areas of the apartment are clearly to the north and toward Parnell Park, these views are restricted to foreground only given the limited height of the apartment and the framing of the view by the buildings on either side of the balcony. The view to the Newcastle Ocean Baths pavilion, rock shelf and ocean beyond, to the east are only achievable to this apartment from the master bedroom and are therefore valued as “high”. Also, the layout of the master bedroom, incorporating floor to ceiling frameless glass was designed to obtain views in this direction and allows for the view to be enjoyed from a seating or standing position.

Findings

20. The parties differ on the assessment of the impact on views from the master bedroom of Apartment 302 when applying the 4 step process of the principles of view sharing in Tenacity specifically as it relates to the assessment of the Step 2 - the value given to the master bedroom.

21. The relevant parts of Tenacity are ([25] to [29]):

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.

22. When the view loss is assessed against the principles in Tenacity, I prefer the conclusions of Mr Speek for a number of reasons. First, and while there was agreement on the views to be affected, I would place the views at the more highly rated end of the continuum of views – not iconic in the sense of the Opera House but highly desirable given the near and distant views of the ocean, the water/land interface, the rock platform and the Newcastle Ocean Baths pavilion.

23. Second, I am not satisfied that the second step in Tenacity should be read so narrowly that even if views are available from a bedroom that this should automatically reduce the value of these views. In this case, the most highly desirable views are only available from the master bedroom and no other location in the unit. If the views were available from the living areas in the unit then a different conclusion could be reached.

24. Third, I agree with Mr Speek that the design of the unit seeks to take advantage of the view through the orientation of the master bedroom and the full height glass windows. Some confirmation of this comes from the evidence of the owner of the unit on the site inspection where he stated that other units in the same location have chosen to take greater advantage of the view by using the master bedroom as a living room.

25. Fourth, and in relation to the fourth step in Tenacity, I am not satisfied the proposal is necessarily reasonable given the impact to Unit 302. The situation in this case is different to most view sharing cases in that it occurs within a strata complex. Also, I do not accept that there is any opportunity for “a more skilful design” to overcome the view loss concerns or that the minor breach of the FSR development standard has any meaningful bearing on the view impact.

26. In finding that the proposed development is unreasonable, I have taken into consideration the existing layout of Unit A101. While I accept that the applicant would gain the benefit of the balcony in times when the weather may not permit its use without the windows and roof, the opportunity still exists for the balcony to be used in less inclement weather conditions. In times of inclement weather conditions, Unit A101 has a large living area within the unit that would enjoy similar, if not wider and more expansive views that could be obtained from the enclosed balcony. I am also mindful that while access to the courtyard is available internally from within Unit A101, this access is from the upper level bedroom and through what appears to be the walk-in wardrobe for the bedroom. I am satisfied that on the question of reasonableness, the benefits of the proposed development through being available to enjoy the balcony area in times of poor weather do not outweigh the disadvantage of the significant view loss to Unit 302 of the near and distant views of the ocean, the water/land interface, the rock platform and the Newcastle Ocean Baths pavilion, even though this view loss is from a bedroom.

27. I also find that the proposed development is inconsistent with objective 1 and controls 1, 2 and 3 of pt 7.01.09 of DCP 2012.

28. I can comfortably conclude that the loss of significant views from Apartment 302 is sufficient to warrant the refusal of the application.

Floor space ratio

29. The current development has a FSR of approximately 1.75:1 whereas cl 4.4 of LEP 2012 provides for a maximum floor space ratio of 1.5:1. Ms McKendry-Hunt calculates that the additional gross floor area of the enclosed balcony will provide an increased FSR of 0. 19% on a gross floor area of 8050 sqm.

30. Clause 4.6 relevantly states:

4.6 Exceptions to development standards

(1) The objectives of this clause are as follows:

(a) to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

(a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b) that there are sufficient environmental planning grounds to justify contravening the development standard.

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

31. Mr Gray for the applicant argued that the increase in gross floor area (and consequently FSR) was so small to be almost immeasurable and not adding in any meaningful way to the bulk and scale of the existing building. While these comments may be correct, the only means by which FSR can be increased above the 1.5:1 FSR in cl 4.4 of LEP 2012 is through the provisions of cl 4.6. Even though the increase in gross floor area is small there is nonetheless an increase above that approved by the council. It is not relevant whether the increase is large or small just so long as it is above an FSR of 1.5:1. There can be no doubt that the enclosure of the balcony now falls within the definition of gross floor area in LEP 2012 (compared to the open balcony) so the provisions of cl 4.6 apply.

31. I find that development consent must not be granted as I am not satisfied that the evidence of Ms McKendry-Hunt satisfies the provisions of cl 4.6, in that her evidence could not be categorised as “a written request” for the purposes of cl 4.6(3). The evidence does demonstrate that “compliance with the development standard is unreasonable or unnecessary in the circumstances of the case” (cl 4.6(3)(a)) and “that there are sufficient environmental planning grounds to justify contravening the development standard” (cl 4.6(3)(b)).

Orders

33. The orders of the Court are:

1. The appeal is dismissed.

2. Development Application 2014/1481 for the construction of a roof and windows to enclose an existing first floor balcony at Unit A101/1 Moroney Avenue, Newcastle East is refused.

3. The exhibits are returned with the exception of exhibits 1 and B.

________________

G T Brown

Commissioner of the Court

Decision last updated: 22 February 2016