Irving v Lane Cove Council

[2010] NSWLEC 1076

Land and Environment Court

of New South Wales

CITATION:	Irving v Lane Cove Council [2010] NSWLEC 1076
PARTIES:	APPLICANT Greg Irving RESPONDENT Lane Cove Council
FILE NUMBER(S):	10881 of 2009
CORAM:	Brown C
KEY ISSUES:	APPEAL :- modification of condition of consent for demolition of an existing dwelling and the construction of a new dwelling - condition requiring reduced height of new dwelling - view loss
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140
DATES OF HEARING:	9 March 2010
EX TEMPORE JUDGMENT DATE:	9 March 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr D Thomas, solicitor SOLICITORS Wellings Lawyers RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pikes Lawyers

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

9 March 2010

10881 of 2009 Greg Irving v Lane Cove Council

1 COMMISSIONER: This is an appeal under s 96 of the Environmental Planning and Assessment Act 1979 against condition 1A(ii) imposed by Lane Cove Council (the council) on the approval of DA 08/249 for the demolition of an existing dwelling and the construction of a new dwelling at 4 Church Street, Greenwich (the site).

2 Condition 1A(ii) states:

1A(ii) The building be lowered by 0.5 m to RL 29.81.

3 The single contention in the proceedings is that the view loss suffered by existing dwellings is unacceptable if the condition is not imposed.

4 The site and the properties at 2 Church St and 9 Robert St were inspected on site inspection. Height poles depicting most of the roof form of the proposed dwelling were erected on the site. An additional roof area to the west could be assessed using the height poles and the architectural plans, so an appreciation of the impact on views from the adjoining dwellings could be made.

The evidence – view loss

5 Mr Stephen Layman provided evidence for the council and Mr Kerry Nash for the applicant. Both experts relied upon the planning principle in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140 that sets out means of assessing view impacts and involves four tests. These can be summarised as

1. an assessment of the views to be affected,
2. the part of the property where views are achieved,
3. the extent of the impact, and
4. the reasonableness of the proposal that is causing the impact.

6 Mr Layman states that while view loss from some vantage points is severe, overall the view impacts are moderate. Having regard to the fourth test in Tenacity, Mr Layman acknowledges that the proposal satisfies the council’s numerical height control, however a more skilful design could provide the applicant with the same development and amenity and reduce the impact of views on neighbours by lowering the building by 0.5 m. This can be achieved by regrading the driveway and setting the garage further back into the site or reducing the floor to ceiling levels of the dwelling.

7 Mr Nash states that the height of the building, as proposed, will not have an adverse impact on the view corridors of the Lane Cove River when considered in the totality of the views currently enjoyed from the two affected properties. He described the view loss as minor for 2 Church Street and negligible for 9 Robert Street. In terms of Mr Layman’s suggestions of lowering the building by 0.5 m, Mr Nash states the lowering of the garage area will create issues with the disposal of stormwater from this area, and the reduction in the floor to ceiling height will create unacceptable impacts on the amenity of the affected rooms.

Findings – view loss

8 In considering the view loss based on the site view using the height poles and the architectural plans against the tests in Tenacity, I agree with the conclusions of Mr Nash. Both properties enjoy elevated and expansive views of the Lane Cover River and more distant views of Woolwich, Northwood and Longueville. From 2 Church Street, the proposed development will block some of the lower water and bushland views in a westerly direction from the terraced area although other water and land views in this direction will still be retained. The northerly views will be generally unaffected. Views from within the dwelling will also be largely unaffected. I am satisfied that the overall view loss is minor at worst, considering the totality of views available from this property.

9 From 9 Robert St, the greatest impact from the new dwelling is from the open courtyard area where some lower and vegetative views will be lost. More distant views including water views and views to the west will be unaffected. Views from within the dwelling and an enclosed verandah off the kitchen area will also be unaffected. In my opinion, the overall view loss would be classified as minor considering the totality of views available from this property.

10 Mr Layman’s evidence that a more skilful design would allow greater views to be retained must be considered in the context of the planning controls that apply to the site and not the existing building form. The undisputed evidence was that the proposed development satisfies the relevant controls for height, floor space ratio and setbacks. Relevantly, the height of the proposal is at worst, 2.7 m below the 9.5 m height requirement for the site. The existing roof height is some 3.5 m below the 9.5 m height requirement. I do not accept that the existing roof level should be the benchmark for a new development on the site. It is of some importance that height is the development requirement that directly impinges on the view loss contention.

11 Mr Layman’s suggestion that a more skilful design could address the view loss contention would have greater force if the proposal exceeded or was even compliant with the council’s height control. I also do not accept that any substantive evidence was provided (beyond his oral evidence) to support Mr Layman’s suggestions that a reduced garage level could reasonably be achieved. It must also be remembered that these proceedings are not a design workshop and that the role of the Court is to determine the suitability or otherwise of the proposal the subject of the appeal.

12 I also agree with Mr Nash that a reduction of the floor to ceiling height below 2.8 m is generally undesirable given the reduced amenity of the rooms that would result. Again, the matter of reduced floor to ceiling heights could be given greater consideration if the proposal exceeded or was even compliant with the council’s height control.

Orders

13 The orders of the Court are:

1. The appeal is upheld.
2. The application to modify the approval of DA 08/249 for the demolition of an existing dwelling and the construction of a new dwelling at 4 Church Street, Greenwich is approved by the deletion of condition 1A(ii).
3. The exhibits are returned with the exception of exhibit A.
______________
G T Brown
Commissioner of the Court