MacLeod v Woollahra Municipal Council

[2020] NSWLEC 183

Land and Environment Court

New South Wales

Medium Neutral Citation:

MacLeod v Woollahra Municipal Council [2020] NSWLEC 183

Hearing dates:

15 and 17 December 2020

Date of orders:

24 December 2020

Decision date:

24 December 2020

Jurisdiction:

Class 1

Before:

Moore J

Decision:

See orders at [146]

Catchwords:

DEVELOPMENT APPLICATION - application to install moveable glazing enclosure at the uppermost level of a building - application refused by the Council - review of Council's refusal results in further refusal - compliance with requirements of the Woollahra Development Control Plan 2015 - necessity for cl 4.6 request for dispensation from compliance with height of buildings control - consistency with streetscape and desired future character - extent of visibility from various locations in the public domain - if the proposal is acceptable on general merit bases, request for dispensation from compliance for the height of buildings development standard should be assumed - present northern façade of the prominent building highly visible from the public domain - present northern façade of the building symmetrical - two balcony enclosures approved in 2001 under different planning controls - 2001 balcony enclosures did not impact on the symmetry of the northern façade of the building - proposed development has unacceptable visual impact and impact on the desired future character of the locality - appeal dismissed and proposed development refused consent

Legislation Cited:

Environmental Planning and Assessment Act 1979

Woollahra Local Environmental Plan 2014

Woollahra Local Environmental Plan 1995

Cases Cited:

Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118

Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130

Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Category:

Principal judgment

Parties:

Duncan MacLeod (Applicant)
Woollahra Municipal Council (Respondent)

Representation:

Counsel:
Mr S Griffiths, solicitor (Applicant)
Mr J Fan, solicitor (Respondent)

Solicitors:
Bartier Perry (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

221574 of 2020

Publication restriction:

No

TABLE OF CONTENTS

Introduction

The hearing

Representation

The Council’s contentions

The evidence

The documentary evidence

The expert evidence

A curious aspect of the Joint Urban Design Expert Report

POINTS IN AGREEMENT

A brief history of the building and a description of its location

The relevant planning controls

The local environmental plan

The development control plan

The site inspection

The actions of the Owners’ Corporation

The experts’ evidence

Introduction

The urban designers’ evidence

The town planners’ evidence

The overall cases advanced by the advocates

Consideration

Introduction

The alterations to the building’s by‑laws

Matters not contributing to refusal

Visual impact of the moveable glazing when stacked

Defining issues concerning the moveable glazing when closed

Introduction

Irrelevant viewing locations

Relevant viewing locations

Visibility during the hours of darkness

Daylight hour viewing of the proposal

Introduction

The Level 10 enclosures

The nature of the proposed glazing

The balcony enclosures in Ocean Street

Other household items on balconies

Conclusion

Orders

JUDGMENT

Introduction

1. On 14 May 2019, Mr MacLeod applied to Woollahra Municipal Council (the Council) for development consent to permit him to install a moveable, multiple panel glass screen in each of the three elements of the balcony of the apartment where he resides with his wife. The apartment is on the eleventh (uppermost) floor of a residential flat building located at 1002/85-97 New South Head Road, Edgecliff. Mr MacLeod’s balcony extends some 18 metres from west to east (dimension from DA-REV-02).

2. The balcony of Mr MacLeod's apartment primarily faces to the north, with a small wraparound at its western end. The apartment is one of two north‑facing apartments at this level of the building - with the apartment and, importantly, its balcony, occupying approximately five-eighths of the façade of the building at the uppermost level.

3. Mr MacLeod's development application was refused by the Council on 19 November 2019.

4. As is his right, Mr MacLeod sought a review of that refusal pursuant to s 8.2 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). That review also resulted in a further refusal of Mr MacLeod's proposed development on 15 May 2020.

5. As is also his right, Mr MacLeod appeals to this Court, pursuant to s 8.7 of the EP&A Act, against that further refusal of his proposed development. This Class 1 appeal was assigned to me for hearing and determination by the Chief Judge.

The hearing

6. As the Court's merit appeal jurisdiction commences to return to comparative normality with the tailing down of the COVID‑19 pandemic, the hearing was able to commence (as would ordinarily be the custom in Class 1 merit appeals) with a site inspection on the morning of 15 December 2020. The site inspection process is later described.

7. Following completion of the site inspection, the hearing of the matter commenced using the Microsoft Teams software. This hearing was conducted in accordance with the Court's COVID-19 Pandemic Arrangements Policy. No physical attendance in the court room was required.

8. Although originally listed to be a one-day hearing (including the site inspection), despite sitting a little beyond the ordinary concluding time, the matter was not finished within that allocated day. As a consequence of the desirability of ensuring that the hearing was completed expeditiously (in light of the significant advance listings in 2021 for judges of the Court), the matter was listed for a resumed hearing for the purposes of closing submissions from the advocates at 8.30 am on Thursday 17 December 2020. The advocates were efficient in their submissions - with me reserving my decision well before my next scheduled hearing at 10.00 am that morning.

Representation

9. Mr S Griffiths, solicitor, appeared as the advocate for Mr MacLeod, whilst Mr J Fan, solicitor, appeared as the advocate for the Council.

The Council’s contentions

10. The Council’s Statement of Facts and Contentions (SOFAC) was filed on 25 August 2020. It became Exhibit 1. The two contentions requiring consideration (those relating to exceedances of development standards in the Woollahra Local Environmental Plan 2014 (the LEP) either not being pressed or being subsumed by the first and second contentions) are set out below:

1.   INCOMPATILIBITY WITH THE DESIRED FUTURE CHARACTER

The proposal is incompatible with the existing facade characteristics of the building on the site, and inconsistent with the desired future character of Edgecliff Mixed Use Centre.

Particulars

(a)   The existing facade has a distinctive visual character because of its openness and its defined, modulated and horizontal façade elements. The proposed alterations and additions to the building façade disrupt the continuity, simplicity, symmetry and depth of the existing façade.

(b)   The proposal will set an undesirable precedent for other units in the building, and in the surrounding area due to the piecemeal nature of the proposal. The façade character is already compromised by the existing enclosed balconies of the two units on Level 9.

(c)   The proposed development is inconsistent with the following aims and objectives of WLEP 2014 and WDCP 2015 which seek to ensure development achieves the desired future character of the area.

•   Aim (l) in cl.1.2 (2) in WLEP 2014

•   Objective 5 in B4 Mixed Use Zone in WLEP 2014

•   Part D2.2.2 - Desired Future Character of Edgecliff Mixed Use Centre in WDCP 2015

2.    ADVERSE IMPACTS ON STREETSCAPE CHARACTER AND VISUAL AMENITY

The proposal adversely impacts on the visual and streetscape character of the Site and its surroundings.

Particulars

(a)   The proposed development does not comply with the following objectives and controls of WLEP 2014 and WDCP 2015:

•   Aim (j) in cl.1.2 (2) in WLEP 2014 10

•   Objective 4 in B4 Mixed Use Zone of WLEP 2014

•   Objectives O3, O4, O5 of WDCP 2015 D2.2.3

•   Controls C3 and C4 of WDCP 2015 D2.2.3.

The evidence

The documentary evidence

11. Documentary evidence was tendered in two folders, one on behalf of each party. Mr MacLeod's documentary evidence became Exhibit C, whilst that of the Council became Exhibit 2. The Class 1 appeal documents were also tendered, becoming Exhibit A. Additional documentary evidence was also tendered:

1. Applicant’s proposed conditions of consent (Exhibit B);

2. Glazing detail diagram (Exhibit D);

3. Applicant’s revised proposed conditions of consent (Exhibit E);

4. Council’s Statement of Facts and Contentions (Exhibit 1);

5. Joint Expert Urban Design Report (Exhibit 3);

6. Joint Expert Town Planning Report (Exhibit 4); and

7. Council’s proposed “without prejudice” conditions of consent (Exhibit 5).

The expert evidence

12. As can be seen from the above list of documentary evidence, Joint Expert Reports were tendered in the expert disciplines of urban design and town planning. In addition to the authoring of these Joint Expert Reports, concurrent oral expert evidence was given in each of these disciplines. The experts were:

1. Mr Y Alexander, urban design expert for Mr MacLeod;

2. Ms Y Middleton, town planning expert for Mr MacLeod;

3. Ms N Vandchali, urban design expert for the Council; and

4. Ms T Ward, town planning expert for the Council.

13. It will later be necessary to consider, in a little detail, the nature of the written and oral evidence of these experts.

A curious aspect of the Joint Urban Design Expert Report

14. Conventionally, consistent with the requirements of the expert witness elements of the Uniform Civil Procedure Rules 2005 and the Expert Witness Code of Conduct, an expert witness Joint Expert Report must address:

1. The matters upon which the experts agree;

2. The matters upon which the experts disagree; and

3. The reasons why the experts disagree about the matters upon which they disagree.

15. The Joint Expert Report between Mr Alexander and Ms Vandchali does not conform to those requirements. It departs from them in a significant aspect which could have, had I been minded so to do, caused me to reject Mr Alexander's evidence as not being proffered on a proper basis compliant with the requirements of the Code of Conduct. It is necessary, unfortunately, to reproduce an image of one element of this Joint Expert Report to explain why I make this unusually trenchant criticism of the way Mr Alexander approached his task. The image of the exemplar element of this Joint Expert Report is reproduced below (from page 10 of Exhibit 3):

POINTS IN AGREEMENT

Following the joint conferencing, the experts agree that:

Note: the blue text is an additional text from NV in response to the agreement points summarised by YA. The green text is further added to the agreement points by YA.

•   The existing building is located in a prominent location at the entry point to the Edgecliff Commercial Corridor. Due to its height, scale and location, including the current lower density surrounding context, the building bulk and form is highly visible from different vantage points (from a pedestrian point of view).

•   Due to the location of the subject proposal being on level 12 of the site, its size as seen from the street is insignificant and not noticeable to the average pedestrian. (NV)I don’t agree with this-. (YA)The comment from WC is not agreed with.

•   The northern façade of the building is only marginally visible from New Beach Road and Rushcutters Bay Park and when seen, the subject apartment is too small to discern any detail, particularly any proposed works.

(YA)The entire façade can be seen, by looking left to right and up and down, but no great detail can be gleaned from seeing level 12 from the street. (NV) In my opinion, it is not marginally visible. The entire façade is visible.

16. It is necessary to describe what is shown in this element from that document. As can be seen from the image, there are four elements contained in the text. These are:

• conventional black text;

• black text in bold;

• the text in blue; and

• text in green.

17. This element of the document is said to describe matters where there was agreement between these two witnesses. The conventional black text reflects that agreement. The bold black text is material inserted into this element of the report - being text added unilaterally by Mr Alexander - text with which Ms Vandchali did not agree.

18. As a consequence, Ms Vandchali felt the necessity to insert additional comments (being those in blue text). This approach was entirely understandable in light of the approach adopted by Mr Alexander.

19. The green text comprises Mr Alexander's response to Ms Vandchali’s response to his unilateral insertions. The approach adopted by Mr Alexander was not appropriate. In particular, his insertion of the words “only marginally” in the second dot point, as can be seen in the earlier reproduced extract, entirely changes and distorts (to his client’s advantage) that which had reflected the agreed position of the two experts.

20. The appropriate course, for the purposes of these proceedings, is to treat that which is in the extract as reflecting disagreement between the witnesses on the relevant elements there addressed and to have regard to the evidence of these two experts on that basis.

21. It is to be noted that what I have reproduced and addressed is the most egregious element of the approach adopted by Mr Alexander, but it is certainly not the only such element in this Joint Expert Report.

A brief history of the building and a description of its location

22. Before turning to set out the relevant planning controls, it is appropriate to give a very abbreviated history of the building. The building was originally constructed as a hotel in the 1970s pursuant to a development consent given by the Council. At the time of its construction, the building did not have balconies adjacent to its various habitable levels above the ground level. The building was used as a hotel between then and the early 2000s.

23. In November 2001, the Council granted development consent to convert the building to what is the present mixed-use development, being one with commercial premises at ground level and residential apartments on the levels above. The consent also permitted the addition of the balconies (here, relevantly, to the northern façade of the building, with wraparound elements at their eastern and western ends); the enclosing of two of those balcony elements on Level 10, as can be seen in the image below; and permitting the addition of an extra residential element by adding a further storey at the uppermost level (this being the storey of the location of Mr MacLeod's apartment). Although not relevant in these proceedings dealing with the presentation of the building to the north, there are also apartments on the southern side of the building and there is also a car‑stacker on the southern side providing parking spaces serving residents of the building.

24. Two further matters are to be observed concerning the building. First is its location. The building is located on New South Head Road as it rises from the dip at Rushcutters Bay towards Edgecliff, at the commencement of that rising of the road. New South Head Road is a major thoroughfare carrying high traffic volumes, particularly (but not confined to) morning and afternoon peak hours. Diagonally across from the building, to its north‑west is Rushcutters Bay Park, a park relevantly bounded on its south by New South Head Road and on its east by New Beach Road. The building is, effectively, opposite the T‑intersection of these two roads. This relationship will later be able to be seen in an air photo reproduced in the site inspection portion of this judgment.

25. Second, the northern façade of the building is one which is symmetrical in its presentation, a matter requiring later consideration in some detail. It is appropriate to reproduce a photograph showing that façade. This photograph is taken from the Urban Design Joint Expert Report (Exhibit 3 at page 5).

The relevant planning controls

The local environmental plan

26. The site of the building is zoned B4 Mixed Use pursuant to the LEP. The building is now a form of development permissible in the zone.

27. Further elements of the LEP requiring consideration are a number of the broad objectives of the LEP, these being in cl 1.2(2), relevantly, in the following terms:

1.2   Aims of Plan

(1)   ...

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

(a)   to ensure that growth occurs in a planned and co-ordinated way,

(b)   to promote the management, development, conservation and economic use of property,

(c)   …,

(d)   …,

(e)   …,

(f)   …,

(g)   …,

(h)   …,

(i)   …,

(j)   to promote a high standard of design in the private and public domain,

(k)   …,

(l)   to ensure development achieves the desired future character of the area,

(m)   …

28. The B4 Mixed Use Zone has five objectives. The Council relies on the fourth and fifth of them in support of its first and second contentions earlier set out. Those objectives are in the following terms:

• to provide for development of a scale and type that is compatible with the amenity of the surrounding residential area;

• to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

29. Two development standards were said by the Council, in its contentions in Exhibit 1, to be engaged, being those relating to non-compliances with:

1. The development standard in cl 4.4 requiring an adherence to the floor space ratio depicted on the relevant sheet of the Floor Space Ratio maps incorporated in the LEP by virtue of cl 4.4(2); and

2. The maximum height of 14.5 metres mapped for the site by the relevant sheet of the Height of Buildings map imported into the LEP by cl 4.3(2). It is to be noted that the actual height of the building is 30 metres.

30. At this point, it is appropriate to note that the Council, at the hearing before me, no longer contended that there was a breach of the floor space ratio development standard applying for the site. It is, therefore, not necessary to consider that matter further.

31. It is also to be noted that the LEP contains a conventional provision, cl 4.6, permitting a development applicant to seek dispensation from complying with development standards set in another clause of the LEP. This is a beneficial and facultative provision, one which requires to be satisfied before development which would otherwise be in breach of a development standard can be permitted. Strict satisfaction of the various tests posed by cl 4.6 are mandatory (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118; Rebel MH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWCA 130).

32. The height of buildings development standard is here engaged, because that which is proposed by Mr MacLeod, although only seeking consent for new glazed elements to be added to his apartment’s balcony, nonetheless falls within the definition of “building” contained in the EP&A Act and thus within the development standard provision derived from cl 4.3 of the LEP.

33. For present purposes, it is unnecessary to set out the terms of cl 4.6 of the LEP because Ms Ward, in her oral evidence, accepted that, if Mr MacLeod's proposed development was otherwise found to be acceptable on merit grounds relating to visual presentation, the fresh cl 4.6 request drafted by Ms Middleton (Exhibit C, Tab 13), could be approved and dispensation to breach the building height development standard granted. It is to be observed that this cl 4.6 request had only recently been served on the Council and was in replacement for an earlier request which the Council had not considered satisfied the various tests requiring to be addressed by the terms of the clause in the LEP.

The development control plan

34. The Woollahra Development Control Plan 2015 (the DCP) identifies the building as being located within the New South Head Road Edgecliff Corridor. The relevant provisions of the DCP were in evidence (Exhibit 2, Tab 2). A number of provisions of the DCP were pressed by the Council as providing a basis upon which, the Council said, Mr MacLeod's development should be refused.

35. The DCP contains, in D2.2 New South Head Road Corridor Edgecliff, a number of elements relevant for the purposes of these proceedings. This element of the DCP commences with a map identifying the corridor, a map which makes it clear that the building is located within it.

36. At D2.2.1, there is a descriptive character statement which it is unnecessary to reproduce. However, at D2.2.2, there is a statement of the desired future character, a character statement in the following terms:

This mixed use corridor is a highly urban environment and it is important that it meets high standards of visual quality and pedestrian amenity.

This part of New South Head Road is a main entry point to the Municipality and it is important that the experience and journey through the centre makes a positive impression. Everything that can be seen and experienced in the street is therefore relevant.

Development fronting New South Head Road will generally contain four to six storey mixed use buildings. Building facades, in terms of detailing and building materials, should be well designed, with particular consideration to how the buildings are interpreted from moving vehicles, so that the view driving along New South Head Road contributes to the public domain. At street level, buildings should respond to pedestrians by providing human scale design elements, interesting frontages and awnings for protection.

Development within this corridor must consider its impact on the adjoining Paddington heritage conservation area, including Glenmore Road, which is an important gateway entry to Paddington.

Development should protect and respond to the character and scale of the heritage conservation area.

37. The DCP then sets out, at D2.2.3, the objectives and controls to be applied to this corridor. Three objectives and two controls are pressed by the Council in support of Contention 2 in the Council's SOFAC. These objectives and controls are in the following terms:

O3   To promote an attractive street wall along New South Head Road.

O4   To promote an urban environment which meets high standards of visual quality.

O5   To improve the relationship of buildings to the public domain.

C3   Facade design is of high aesthetic quality, and complements the form, roofline, fenestration, material, finishes and colour of adjoining buildings.

C4   Facade design incorporates similar proportions of glazed and non-glazed surfaces and achieves a balance between vertical and horizontal divisions. The extensive use of glass is avoided.

The site inspection

38. At the commencement of the site inspection, I visited Mr MacLeod's apartment and stood upon his balcony, walking its length whilst doing so. During the course of this element of the site inspection, I was accompanied by the advocates and by Ms Middleton and Ms Vandchali. Appropriate social distancing was observed during this process.

39. During this element of the site inspection, I observed, from the western end of Mr MacLeod's balcony, the proximity of the Eastern Suburbs Railway viaduct between Kings Cross and Edgecliff Stations. Whilst we were on the balcony, a westbound train was observed (and more importantly heard) by me on this viaduct.

40. I was also able to observe (and hear), the traffic travelling in both directions on New South Head Road at the immediate front of the building. Although not at peak hour in either direction at the time of the site inspection, the aural impact of the traffic that was observable (particularly in combination with the noise of the train during its transit of the viaduct) had a highly significant impact on those on the balcony at that time.

41. Although not windy at the time of the visit, I do not understand it to be a matter of controversy that there is also a significant adverse wind affectation on those who might be on the balcony from time to time.

42. At ground level, the party from the apartment visit (with the addition of the two experts who had not attended in the apartment as a consequence of the COVID‑19 Site Inspection Protocol) walked to various locations in the vicinity to look back at the northern façade of the building. These locations were:

• immediately in front of the building on the footpath of New South Head Road;

• on the footpath of New South Head Road opposite the building at the eastern side of the intersection of New South Head Road and New Beach Road;

• on the footpath outside 6 New Beach Road;

• at the bus‑stop for catching or alighting from eastbound buses travelling along New South Head Road (with this bus‑stop being located on New South Head Road some 45 metres or so to the west of the intersection of that road and New Beach Road); and

• at a number of locations in Rushcutters Bay Park.

43. To commence the element of the site inspection in Rushcutters Bay Park, we accessed the level, grassed playing field area of the park by walking down a flight of concrete steps at the intersection of New Beach and New South Head Roads, to the east of the bus‑stop noted above.

44. We then walked across the grassed surface toward, but not entirely reaching, the outdoor seating area of the kiosk located in the centre of the park.

45. At a number of points, we turned to look back, in a south-easterly direction, to view the northern façade of the building. In this context, it is appropriate to note that, conventionally for town planning analysis purposes, the eye height of a “typical observer” is to be taken as 1.6 metres above the surface upon which that typical observer is standing.

46. At the first location where I did this, close to, but not at, the foot of the concrete stairs, the view of the northern façade of the building was only a filtered one with there being partial obstruction by the leaves of the trees growing on the embankment of the park along New South Head Road.

47. At the next viewing point, some eight to 10 metres further on, the view of the northern façade was uninterrupted. Because of the difference in elevation between the grassed surface of the park and New South Head Road at the foot of the building, a slight elevation of the horizontal viewing line would be necessary to view the façade. However, the façade is prominent in the viewscape from this point.

48. A further eight or 10 metres into the park, a similar uninterrupted view of the façade is to be seen with, in my assessment (as my viewing height is above that of the notional typical observer), virtually no elevation of the sightline required to take in the façade of the building – when walking back towards the steps to New South Head Road. Given its light colour and prominence, the façade of the building is undoubtedly the dominant element in this viewscape.

49. At our final viewing point into the park, yet a further 10 metres or so toward the café seating area, the position remained that the northern façade of the building was, because of its prominent location and colour, the single feature in the viewscape to which the eye was naturally drawn.

50. Before describing the final elements of this perambulation in the park, it is also appropriate to note that the roof of the building has two clusters of telecommunications aerials located on it. One of these is at the western end directly above the roof of Mr MacLeod's apartment on the uppermost level. These aerials, including those at the western end, comprise a discordant and irregularly presenting element in the view of the northern façade of the building. In my assessment (being a factor also later addressed in my consideration of the expert evidence), these aerials are an element which tends to draw a viewer of the northern façade to that upper‑central and north‑western corner of the façade which encompasses the location of the balcony which is the subject of this development application.

51. From our final viewing point from our walk into the park from the foot of the concrete stairs, we turned to walk diagonally toward a sloping, tar-sealed vehicle access point from New Beach Road to the grassed surface of the park. This travel line was an angle of roughly 30 degrees from the line which we had followed walking into the park from the foot of the concrete stairs. For much but not all of this walk, the northern façade presentation was in the viewscape of an observer following this direction of travel (and not in a sense merely to be noted in the peripheral vision of such an observer).

52. However, as we approached the driveway leading to New Beach Road, the view of the façade commenced to become a filtered one, obstructed by vegetation - with the view becoming, effectively, completely blocked by the time we walked up the tar-sealed slope to New Beach Road.

53. From this point, we crossed New Beach Road to a viewing point outside 6 New Beach Road and looked toward the building. Although not entirely uninterrupted from this point, nonetheless, the majority of the upper levels of the façade were able to be seen.

54. Figure 3, reproduced in the Urban Design Joint Expert Report (Exhibit 3 at page 10) comprises a marked‑up air photo that depicts, relevantly, the south‑eastern quadrant of Rushcutters Bay Park; the intersection of New South Head Road and New Beach Road; and the site of the building. The red arrow markings on the air photograph reproduced below show the viewing points in the park (although not necessarily with pinpoint precision), the subject of the above discussion, and reflecting the general path of our walk (although not the direction it was followed).

55. Finally, it is to be noted that, during the site inspection, I was asked to observe the eclectic range of furniture and other objects able to be seen sprinkled behind the balustrades of a range of apartments in the building.

The actions of the Owners’ Corporation

56. There are two aspects of the Owners’ Corporation’s response to Mr MacLeod's development application that are appropriate to be noted.

57. First, to be able to be implemented, Mr MacLeod required the consent of the Owners’ Corporation to enable him to affix various elements of his proposed development to the common property of the building. This consent has been provided, as noted on his development application to the Council. This was provided by a registered alteration to the by‑laws governing occupation of the building and use of common property areas. This alteration to the by‑laws has created consent for Mr MacLeod to give effect to his development proposal if it is approved.

58. A second element relating to the Owners’ Corporation is a proposed by‑law (Exhibit C behind Tab 2) which, if adopted and registered, would create a regime whereby the Owners’ Corporation could not grant owners’ consent to any similar modification to the balconies of the two apartments at Mr MacLeod's level, one of which apartments is north‑facing and located to the east of Mr MacLeod's apartment, unless such proposals were consistent with Mr MacLeod’s (if approved).

59. Whilst I have no evidence that this by‑law has been adopted and registered (although I was informed on behalf of Mr MacLeod that this was so), I am prepared to consider Mr MacLeod's application on the assumption that, if not already adopted and registered, this by‑law will be so adopted and registered.

60. However, it is also to be noted that there is no evidence of anything evincing an intention by the owners of those apartments to seek the installation of such a system on their balconies (let alone any application having been made by either or both of those owners to the Council to seek approval for such structures).

61. I later explain why I am satisfied that this by‑law, on the basis of the lack of evidence of any intention by the owners of the other apartments at Mr MacLeod's level to pursue such a modification, provides no comfort to me in my assessment of the necessary planning aspects called up for consideration by Mr MacLeod's development proposal.

The experts’ evidence

Introduction

62. As earlier noted, two Joint Expert Reports were in evidence – with the urban design experts and town planning experts being grouped for the purposes of the preparation of these documents. Each of those groupings of experts gave oral evidence concurrently using the split‑screen technology available through Microsoft Teams.

The urban designers’ evidence

63. It is difficult to address the Urban Design Joint Expert Report because of its slightly incoherent nature, as earlier described. However, the urban designers agreed that the northern façade had a simple and symmetrical architectural character. Mr Alexander was of the view that this did not give rise to any requirement to preserve that symmetry. On the other hand, Ms Vandchali considered that the introducing of the proposed new element would adversely impact the northern façades architectural integrity and style.

64. Mr Alexander was of the view that the building did not have great architectural merit and that the presence of the telecommunications aerials on the roof of the building cluttered the perception of the building.

65. The experts disagreed as to the proper understanding to be given to the paragraph in the desired future character statement for the corridor, with Ms Vandchali expressing the view that the necessity for high standards of visual quality was inconsistent with Mr MacLeod's proposed development. On the other hand, Mr Alexander considered that, because the proposal was located on the uppermost level of the building, in a visual perception sense it would have no significant impact on the overall reading of the building from various street level locations.

66. Other themes emerged during the course of their concurrent oral evidence.

67. In summary, relevant points from Ms Vandchali's evidence were:

1. If such a treatment to a balcony was to be approved, it should be done over the entirety of the northern façade;

2. The building was a gateway building to the precinct and was highly visible in its streetscape, particularly being highly visible from the park when walking through it as was done during the course the site inspection;

3. The telecommunications aerials will attract the eye to the upper levels of the northern façade;

4. The building is highly visible in its overall context;

5. Mr MacLeod's proposed development will not simply blend into the existing elevation provided by the northern façade.

68. She also expressed the opinion that there would be daylight solar reflections, to some extent, when the proposed folding glazing was closed and that dust accrual on the folding panels f when they are in the closed position will, over time, increase visibility of them.

69. Overall, as I understood her opinion, it was that the building was not one of great architectural merit but was one which should not be cluttered further by what she considered to be an asymmetrical and unsympathetic development proposal.

70. On the other hand, Mr Alexander expressed the view that the proposed development was complimentary and sympathetic to the existing building and that there was greater clutter and adverse impact on the presentation of the building from the present rooftop telecommunications aerials.

71. Although Mr Alexander accepted that there was an element of underlying symmetry and simplicity of the façade at present, he opined that such symmetry was of less importance than the benefit to the owners and occupants of the dwelling because of the amenity improvement that the proposed development would provide.

72. Mr Alexander also expressed the view that, because that which was proposed involved only some five-eighths of Level 10, but, more importantly, only about 1% of the northern façade presentation to the building, this should not stand as a barrier to approval of what was otherwise a minor development, but one which would provide considerable amenity benefits to the occupants of the apartment.

The town planners’ evidence

73. The town planners provided a Joint Expert Report (Exhibit 4) and also gave concurrent oral evidence using the split‑screen technology of Microsoft Teams. Evidence was given by them, in their written report, addressing each of the contentions pressed by the Council as earlier set out.

74. Although they agreed on a number of comparatively uncontroversial points, they disagreed about the substantive issues engaged by each contention. In this regard, with respect to the first of those contentions, Ms Middleton's contribution to the Joint Expert Report made, in summary, the following points:

• it will be difficult to discern the proposed changes from any point close to the building;

• the proposed development will not interfere with the modulation of the northern façade because such modulation was provided principally by the balconies and fins; and

• because the proposal encompasses the majority of the uppermost level of the building and ends at an existing solid element, it will not disrupt the continuity, simplicity, symmetry and depth of the existing façade.

75. In particular, she did not agree with the proposition that approval of Mr MacLeod's proposed development would create an undesirable precedent for other applications which might be lodged in the future for any other “wintergarden” applications. Any such future applications, she opined, would need to be assessed on the facts and circumstances of such an application. She expressed the view that the desired future character of the locality would be set by the floor space ratio and height controls in the LEP. Because the present building on the site could not comply (and substantially did not comply) with those controls, it was inappropriate to use those, for this building, as any performance measurement for compliance.

76. She noted that there was agreement between her and Ms Ward that this section of New South Head Road has an eclectic streetscape character. In this context, she did not consider that the building displayed any particular architectural design merit.

77. She opined that, at the distances from which it was likely that the proposed development might be able to be observed, there would be little realistic opportunity to read Mr MacLeod's proposed development.

78. In supplementation of her written opinions, relevantly, she accepted orally that the present presentation was as a uniform shape when observed from Rushcutters Bay Park but she said:

Symmetry is not the only thing, variation can also be interesting.

79. During the course of her oral evidence, Ms Middleton also opined that the eclectic range of outdoor furniture and other items able to be observed behind the balustrades of many apartments visible across the northern façade of the building was a matter which counted against any observation of Mr MacLeod's proposed development standing out, should it be approved and operated in a closed position.

80. To provide a more complete picture of Ms Middleton's evidence, it is also appropriate to set out a number of the paragraphs from her contribution to the Joint Expert Report.

10   The proposal does not set a precedent or ‘allow floodgates to open’ as any future proposal is subject to layers of approval: firstly, through the Owners Corporation for Owners’ Consent; and secondly, through the Council development approval process. Therefore, any future changes to the appearance of the building would continue to be regulated, notwithstanding the discreet appearance of the glazed operable panels proposed for the wintergarden.

11   It is important to recognise the proposal will allow the Applicant to use the balcony; by mitigating the effects of road and rail noise, and wind. It will allow the apartment to be natural ventilated and reduce reliance on air conditioning, while limiting traffic noise.

12   Only the current proposal can be considered at this point, as the Court cannot anticipate whether other owners might follow suit. As shown in Figure 1, is also almost the entire top floor of the building, as the existing ‘fin’ which separates Unit 1002 from its neighbour, provides a logical ending point. The fin also obscures views of the neighbour, from the west. Thus, the well-resolved proposal will not appear ‘piecemeal’.

14   With respect to the existing enclosed former balconies on the level below, while not a highly desirable solution, it was approved by Council and is part of the existing character. These areas are no longer balconies, but form part of the apartment interior. As noted, this is not the intent of the proposal, which is not characterised as a built form enclosure. Therefore, I consider the proposal does not set an undesirable precedent and in fact would provide a suitable alterative for future development when compared to total enclosure.

15   I note the desired future character is based on LEP development standards including building height and FSR. As noted, the existing building does not comply with either standard. If the construct is based entirely on those two standards, then the proposal simply cannot achieve the LEP’s Aim (sic) for desired future character. However, the building forms part of the existing character of the DCP’s Edgecliff Mixed Use Centre, and to that character, the proposal is a minor change which will be barely discernible.

…

65    In my opinion this control seeks to ensure a balance of solid and void treatments to a façade, with the primary intention being to avoid curtain walls: ‘The extensive use of glass is avoided’. The proposal does not seek to replicate the curtain walls provided to the two flats below, where the balconies were enclosed and incorporated into living space.

66   As noted, the system features independent suspended panels on a track which allows them to be located as needed; individually or in groups. The system does not require the whole area to be ‘enclosed’. The system does not require framed panels, as was previously refused by Council. Clear seals will prevent glass panel damage, and minimise vertical lines where panels abut.

67   The proposal is a flexible and discreet system, which allow the Applicant to control the amenity of his balcony area. In my opinion this is preferable to a permanent enclosure, which can result in the balcony space becoming part of the internal living areas, such as has occurred on the mixed use building on the corner of Ocean Street and New South Head Road. It should be noted that such random appearance can occur wherever window furnishings are used.

81. Ms Ward's evidence was entirely consistent with her contribution to the Joint Expert Report and sought to confirm it in a number of respects. She emphasised the following points:

1. The balconies on the northern façade of the building were highly visible and, with the exception of the two enclosures on the level below Mr MacLeod's level, were ones that had balustrades with obvious voids above and behind them;

2. Mr MacLeod's proposed development was unsympathetic with the existing presentation of the entirety of the northern façade, a façade which was symmetrical – with this proposal, if approved, adding an element that would be incompatible with retention of that symmetry.

82. It is appropriate, also, to repeat a number of elements from her contribution to the Town Planning Joint Expert Report:

42   The existing balconies are highly visible architectural elements that dominate the façade and are important architectural elements on the outside of the building. The façade design contributes to form and articulation of the building with glass balustrades to allows views. The openness of the façade is further defined through the modulation and vertical elements that are symmetrical and simple. The solid to void ration provides a consistent pattern which limits areas of excessive glazing.

43   The proposal would set an undesirable precedent for future development at the subject site and the piecemeal nature of the development would degrade the external façade of the building. It is the precedent set by the ad hoc nature of the proposal which is considered to be incompatible with the desired future character of the Edgecliff Mixed Use Centre. It is important to emphasis (sic) that the contention is directly associated to the precedent set by the proposal that will degrade the ordered horizontal elements of the current façade.

47   I consider that the consequence of piecemeal balcony enclosures should be given greater weight than the current amenity afforded to the owners with regards to traffic noise and wind impacts.

…

68   As the experts have agreed that the proposed mechanism for the enclosure is less visible than a permanent balcony enclosure, the specific materials and origin of the glass and seals is not disputed in terms of design for the individual apartment. In relation to promoting a high standard of visual quality and design in the private and public domain (Aim J in Clause 1.2(2) of the WLEP and Objective O4 in Part D2.2.3 of the WDCP), my contention is based on the potential precedent for the building as a whole. I consider that the proposed piecemeal enclosure of some balconies and not others would result in adverse impacts on streetscape character and visual amenity. This is contrary to Controls C3 and C4 in Part D2.2.3 of the WDCP which requires high aesthetic qu ality (sic), similar proportions of glazed and non-glazed surfaces, a balance between vertical and horizontal divisions and the use of extensive glass be avoided.

69   As discussed under Contention 1, the building is highly visible to the surrounding areas including New South Head Road, New Beach Road and Rushcutters Bay Park. New Beach Road is located in the R3 Medium Density Zone. The potential future precedent of piecemeal balcony enclosures would disrupt the pattern of glazing and degrade the symmetrical and simple façade of the building. This would result in adverse amenity and visual impacts ot the streetscape and the surrounding area which is contrary to Objective 3 in the B4 Mixed Use Zone. The precedent set by the proposal does not promote an attractive street wall along New South Head Road (Objective O3 in Part D2.2.3 of the WDCP) and improve the relationship of the building to the public domain (Objective O5 in Part D2.2.3 of the WDCP).

The overall cases advanced by the advocates

83. Mr Griffiths submitted that there were two fundamental questions that I needed to address in my assessment. These were:

1. Whether Mr MacLeod's proposed development would be discernible from key public viewing points; and

2. If it was discernible, was it acceptable in its context?

84. With respect to the first of his rhetorical questions, he submitted that I should conclude that, if approved, the development would not be readily discernible because, when stacked in the open position, it would be against the relevant blade walls and, when closed, all that would potentially be visible was glazed elements.

85. For these reasons he submitted, I should conclude that the proposal would largely blend in with the form and scale of the existing balcony.

86. He also submitted that the environmental and amenity benefits for the occupants of the apartment weighed heavily in favour of approving the development.

87. He proposed that the proposal was consistent with the desired future character of the locality for the following reasons:

1. It was of sympathetic design;

2. The overall form of the northern façade of the building would not be altered substantially as the design was one which was as inconspicuous as possible;

3. The general clutter observed during the course of the site inspection on other balconies on the northern façade was a factor requiring to be considered in assessing whether Mr MacLeod's development proposal was discordant or not; and

4. The proposed development was compatible with the overall presentation of the northern façade of the building because it would exist in harmony with that compatibility removing the necessity for “sameness” in that presentation.

88. Mr Griffiths also submitted that the broader sense of symmetry of the northern façade was disrupted at the upper level because of the presence of the two telecommunications aerial clusters.

89. He submitted that approving Mr MacLeod's proposal would not provide an unacceptable precedent and pointed to the proposed by‑law concerning the other apartments at this level as ensuring that any future development at that level would need to be harmonious with that proposed by Mr MacLeod.

90. Finally, he pointed to two propositions to which Ms Ward had agreed. The first was that Mr MacLeod's proposed development did not create any unacceptable impact at street level and that, if the proposal was otherwise acceptable on the more general basis with which it was agreed I should approach it, then the cl 4.6 request for the non-compliance with the height of buildings control should be approved.

91. Mr Fan accepted that, if the proposal was acceptable on its merits, there would then be no separate need to assess the cl 4.6 request seeking dispensation from compliance with the height of buildings development standard.

92. He accepted that there would be significant amenity benefits for Mr MacLeod and his wife if the development was approved but did not accept that this outweighed the necessity to consider and satisfy the objectives and controls provided by the DCP.

93. He submitted that the fundamental aspect of that which was able to be drawn from the northern façade was that it was simple and symmetrical and that this was entirely consistent with the desired future character expressed by the Council in its planning documents.

94. The position was, he submitted, that the building was unique in its context and that the proposed changes to it would be visible from the relevant public locations and will disrupt the symmetry, as Ms Vandchali had opined. He drew attention to Ms Vandchali's evidence concerning which reflectivity and increased visibility of the glazing as it became dirty over time.

95. He submitted that the development, if approved, will look different - as could be understood from the site inspection and from the Council’s experts’ evidence. It will impact on the visible resolution of the top floor of the building from the public domain. He submitted that the Ocean Street balcony enclosures to which Mr Griffiths had drawn attention were irrelevant and had been dealt with on the facts and circumstances of those applications - applications which could not have any relevance for that which require consideration in these proceedings.

96. Finally, he submitted that the prominence of the building required that greater weight and emphasis needed to be placed on the requirement to address the desired future character of the locality.

Consideration

Introduction

97. At the outset, it is to be acknowledged that, for reasons set out briefly in my description of what was experienced during the site inspection whilst on Mr MacLeod's balcony, approval of his proposed development would provide a significant improvement to his and his wife's amenity. That, although a factor weighing in favour of approval, does not of itself provide a sufficient basis to permit what he proposes.

98. His proposed development must be weighed against the impacts that it would occasion in a broader public domain sense, having regard to both the objectives of the LEP and the relevant controls set out in the DCP. In Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167, the Court of Appeal expressly mandated that, in merit appeals such as this, relevant provisions of a development control plan must form the focal point for consideration of a proposed development.

99. As a consequence, I must assess Mr MacLeod's proposal by having appropriate regard to the objectives of the LEP pressed by the Council in its contentions, as well as paying specific regard to those controls in the DCP, which Mr Fan submitted the Council proposed were, properly understood, fatal to this development proposal.

100. In this context, after addressing other preliminary matters, it is appropriate to turn to consider what will be the visibility of the proposal, when the sliding window elements of it are in the open position (that is the elements are stacked against the relevant blade wall or, at the western end, against the façade of the building proper) and when the elements are closed (that is, when the enclosing glazing structure is operated to provide the aural and wind protection for which it is designed).

101. I am satisfied that Mr MacLeod's proposed development is inconsistent with the appropriate broad understanding of the final objective in the LEP for the B4 Zone and does not satisfy controls C3 and C4 in the sense these are called into play by objectives O4 and O5 in D2.2.3 of the DCP. As a consequence, Mr MacLeod's development proposal must be refused. I now turn to explain in some detail why this is the case.

The alterations to the building’s by‑laws

102. I earlier explained the nature of a proposed by‑law for the building that would seek to bind the owners of the other two apartments at Mr MacLeod's level in the building to adopting the same implementation system as is proposed by Mr MacLeod (if those owners sought to obtain consent from the Owners’ Corporation for some form of moveable enclosure system for the balconies of those apartments).

103. I indicated, where I set out the nature of that by‑law, my view that it provided no assistance to Mr MacLeod with his proposed development. There are a number of reasons for that.

104. First, if Mr MacLeod's proposed development has an unacceptable visual impact in the fashion advanced by the Council in these proceedings, that will be sufficient to warrant its rejection.

105. Second, the potential to mandate, on a highly contingent basis and in an entirely unanticipatable timeframe, that some future development might be contemplated for the adjacent balconies at Mr MacLeod's level does nothing to offset the asymmetrical nature of that which Mr MacLeod proposes to install across approximately 60% of the north‑facing façade of the building.

106. Finally, it is also to be observed that there can be absolutely no certainty that such a by‑law, if adopted, could not be set aside by NCAT, upon application by one or other (or both) the owners of the other apartments, on the basis that such a by‑law imposed an unreasonable restriction on the opportunity to seek approval for some alternative form of amenity-increasing treatment to those balconies.

107. For these reasons, I am satisfied that the by‑law said to be directed to balcony alterations of the other balconies at Mr MacLeod's level provides no assistance to Mr MacLeod in my assessment of his application.

Matters not contributing to refusal

Visual impact of the moveable glazing when stacked

108. Consideration of the visual impact of the glazing system proposed when it is stacked away can be dealt with in short compass. When this occurs, the only visible elements observable from any places in the public domain visited during the site inspection will be the leading edges of the glass panels stacked against the blade walls on the northern façade and the proposed white aluminium extension proposed to be attached to the present slab awning to the balcony. Although I am satisfied that these elements will be perceptible from public viewing points within Rushcutters Bay Park and from vehicles stopped by the traffic signals when seeking to exit New Beach Road, I am satisfied that this visual impact will be minimal and insufficient to contribute in any significant fashion to warranting refusal of the proposal.

109. The only potentially relevant viewing location raised by the Council from which the stacked glass panels at the western end against the façade proper of Mr MacLeod's apartment would be visible is the bus‑stop on the eastern side of New South Head Road to which we went during the course the site inspection. For reasons explained below, although these stacked panels would be more visible than the other elements and the end of the line of the aluminium extension and portion of that extension to the east of the end might be more prominent than the other elements when viewed from elsewhere, I do not consider that any potential impact of viewing from the bus‑stop should weigh against Mr MacLeod's proposal.

Defining issues concerning the moveable glazing when closed

Introduction

110. To undertake a proper assessment of the potential impact of the proposal when the moveable glass panels are in a closed position, there are two steps necessary to be taken, in my view. The first is to define the appropriate viewing locations from which there is likely to be any significant potential observation of Mr MacLeod's balcony from the public domain. Having identified those locations, it is then necessary to undertake an assessment of the potential impact of the glazing system when closed during daylight hours and during periods of darkness.

Irrelevant viewing locations

111. I have earlier described, in some detail, the viewing of the northern façade of the building at various points in Rushcutters Bay Park and from outside 6 New Beach Road. I have not set out any detailed description of the view of the northern façade to be had from the bus‑stop on the eastern side of New South Head Road or from the footpath immediately in front of the building. In my assessment, these views are of no relevance to the matters requiring consideration in these proceedings.

112. First, from the footpath outside the building (or, in my assessment, at any potentially relevant viewing point in the immediate vicinity on the footpath on this side of New South Head Road), any appreciation of the element of the building façade incorporating Mr MacLeod's balcony would be extremely limited and would also involve a determined upward craning of the neck in order to obtain such a view.

113. Second, the view from the bus‑stop is also, in my assessment, to be disregarded for three reasons. These are that:

1. The principal viewing distraction at this location is the passing traffic;

2. Any upward view toward the façade of the building is at somewhat of a diagonal angle and is, in any event, partially obscured by overhanging vegetation; and

3. I consider it likely that the primary focus of those who might be waiting at this bus‑stop will be to the west along New South Head Road towards Kings Cross to watch for the approach of a bus which the observer might be seeking to catch.

114. For those who might be alighting from a bus at this point, obviously, they will be looking away but, if they turn toward the east, the same vegetation obstruction of any viewing of the façade would apply.

Relevant viewing locations

115. It therefore follows that, as earlier noted, with respect to potential viewing points of the system when stacked away, the critical locations are:

1. From viewing points within Rushcutters Bay Park;

2. From vehicles stopped and queued when seeking to exit New Beach Road into New South Head Road in either direction; and

3. From points on the eastern footpath of New Beach Road commencing outside the point visited during the site inspection and walking in a southerly direction to the pedestrian signals on the south-eastern corner of these two roads (for pedestrians seeking to await a green “walk” signal to cross New South Head Road in a southerly direction).

116. I did not understand it to be in contest that Rushcutters Bay Park is an attractive harbourside location subject to high user demand (whether by casual users strolling in the park; patrons of the central café in the park; or users of the football pitch across the grass of which we walked during the site inspection).

117. Nor is it in contest, as I understand it, that the queueing of vehicles in New Beach Road seeking to exit onto New South Head Road (the direction of turn being irrelevant) was one with regular stacking of vehicles proposing to undertake such a movement.

116. During the course of the site inspection, it was evident that the transition period during which the green phase of the traffic signals at this intersection favoured traffic on New South Head Road. This phase was significantly longer than that permitting exiting from New Beach Road. Given the obvious comparative positions of these roads in the road hierarchy, such signalisation bias is entirely understandable. It does, however, have the effect that cars stacked in New Beach Road will be there for a time period sufficient for drivers and front‑seat passengers to have ample opportunity to look toward the northern façade of the building, a façade which, as I have earlier observed, is a prominent one virtually opposite that intersection.

117. In addition, as New Beach Road approaches this intersection, it rises from the element of the coastal plain adjacent to Sydney Harbour as it goes up to the intersection and angles toward the building.

118. As a consequence, vehicles stacked for turning out of New Beach Road will be facing uphill toward the northern façade of the building - thus increasing the probability that the drivers and front‑seat passengers of those vehicles will have their eyes drawn toward the northern façade as a prominent (indeed, the dominant) element in the immediate viewscape.

Visibility during the hours of darkness

121. There are two aspects to this consideration. First, whilstever there were occupants of the apartment with lights on (whether on the balcony or within the apartment being irrelevant in my assessment), I am satisfied that the upper‑level folding glazing will be imperceptible when lit from the rear.

122. When there is no internal illumination during hours of darkness, there was no suggestion advanced by the Council that there was any likelihood of significant upward lighting at any time which would render the glazed panels visible by virtue of the reflection of such light. Whilst it is possible that immediately before, at and after the full moon on clear nights there may be some reflective visibility of the moveable panels, given that low (but not zero) reflectivity glass is proposed to be used, I am satisfied that such limited lunar reflection as might potentially be occasioned is also not a matter warranting contribution to refusal of Mr MacLeod's proposal.

Daylight hour viewing of the proposal

Introduction

123. The critical matter requiring consideration, therefore, is the daylight visibility of, and extent of impact from, the proposed development (if implemented) when it is operated to enclose the balcony.

124. I have earlier identified the three critical viewing locations with respect to which it is necessary to assess the likely visibility of the proposed system, when deployed, when considered in the context of the combination of the relevant objectives of the LEP and the objectives and controls in the DCP pressed by the Council.

125. In this context, it is also appropriate to explain how I consider that those viewing points should be weighted for the purposes of this assessment:

1. The most significant potentially impacted viewing locations are those within Rushcutters Bay Park;

2. The second‑ranked, and only somewhat less important viewing location, is from vehicles queued in New Beach Road at its intersection with New South Head Road, whilst waiting to exit either to the east or west; and

3. A far less significant potential viewing impact is for pedestrians walking along the footpath on the eastern side of New Beach Road, from outside 6 New Beach Road and walking to the south (including stopping to wait for the green “walk” signal to cross New South Head Road).

126. With respect to this latter potential viewing location, the Council has not advanced any evidence that would cause me to conclude that there were significant pedestrian volumes along this route and, certainly, other than those taking part in the site inspection, I do not recollect there being any pedestrian activity along this footpath strip during that site inspection.

The Level 10 enclosures

127. Ms Middleton and Mr Alexander each relied upon the existing enclosures of two former balcony spaces on Level 10, the level immediately below that of Mr MacLeod's apartment. Those balcony enclosures can be seen on the photograph of the northern façade of the building earlier reproduced.

128. There are a number of reasons why these enclosures provide no assistance to Mr MacLeod for the present application.

129. First, these enclosures were approved, as Mr Fan submitted, under an earlier planning regime, a planning regime that is not now applicable. Although some discussion took place in the Council’s Assessment Report for the conversion, some 18 years ago, of the hotel to a residential apartment building (the Assessment Report is in evidence at Exhibit C behind Tab 5):

1. It is to be observed that this Assessment Report makes it clear, as Mr Fan submitted, that the conversion (including the addition of the balconies) took place under an earlier planning regime. That comprised the Woollahra Local Environmental Plan 1995 and two then applicable development control plans;

2. The zoning, at that time, was 3(b) Business Special. The zone objectives for this zone in the then applicable local environmental plan were reproduced on page 15 of the Assessment Report (folio 119 in Exhibit C). Those objectives do not reflect the current objectives of the B4 Zone;

3. Similarly, elements from the then applicable development control plans do not appear to have present relevance; and

4. However, one element from the Assessment Report warrants being quoted (Exhibit C, Tab 5, folio 133)

It is considered that the entire character/visual appearance of the building will be vastly improved. As noted above, the building is one of the most prominent entry buildings to the municipality. New levels of glazing, balconies, contemporary finishes, proportioning and detailing, reduced areas of blank walls along with a tidying of the massive structures and services located on the roof level, will contribute to this improved appearance.

130. Although the enclosures on Level 10 are depicted on the north elevation plan in the selection of plans for this redevelopment (at folio 221), nothing I have been able to find in the Assessment Report refers, specifically, to these two enclosures.

131. Second, although visually prominent because of the darker tone and presentation in the façade (whether from the form of glazing or from window furniture behind that glazing being immaterial), the two enclosures are symmetrically equidistant from the central vertical axis of the northern façade of the building. Whilst different in visual presentation, they are nonetheless incorporated in a harmonious fashion rather than in a discordant one.

132. However, they are clearly distinctly different in visual presentation and, therefore, as a consequence, operate to draw the eyes of an observer of the northern façade of the building to those upper levels of it. Indeed, the juxtaposition of those elements and the location of the two telecommunications aerial elements on the roof of the building above and to the west of these enclosures acts to draw an observer's eyes more powerfully to that section of the building.

133. It is precisely in the centre of that juxtaposition that Mr MacLeod seeks to insert his moveable balcony enclosure system. This increases the significant likelihood that, when closed, those observing the northern façade of the building during daylight hours will have their eyes drawn not only to the two existing enclosures and to the cluster of telecommunications aerials, but also to Mr MacLeod's balcony enclosure system (if approved and in operation at the time).

The nature of the proposed glazing

134. Although Ms Middleton, particularly, was at pains to point out to me that the system Mr MacLeod proposes to install is one utilising low reflectivity glass, it is not a system which relies on no reflectivity glass.

135. The glazing will, as a consequence, be visible when observed from the identified critical public viewing points, if, when viewed from such locations, the glazing is operated to enclose the balcony. In closed mode, it will be readily visible at a location to which a viewer's eyes are drawn for reasons earlier explained.

136. The image that will be reproduced will be one which is asymmetrical at the uppermost level and entirely unreplicated in any similar fashion at any lower residential level.

137. Such a presentation is inconsistent with the relevant controls, for the reasons explained by Ms Vandchali and Ms Ward in the evidence they gave on behalf of the Council. As I have earlier explained, I am satisfied that the evidence of each of these witnesses is to be preferred over that of their counterpart expert giving evidence on Mr MacLeod's behalf.

The balcony enclosures in Ocean Street

138. Mr Griffiths sought to rely on a number of fixed balcony enclosures in Ocean Street, Edgecliff, in support of Mr MacLeod's application. I am satisfied that these are irrelevant. Each of them was determined, not only on whatever planning regime applied at the time (at least one being under an earlier local environmental plan), but also depended on the facts and circumstances of each application and the contemporary visual presentation of the building there involved.

139. There is no evidence that would suggest that that building is as visually prominent as is that within which Mr MacLeod's apartment is located nor is there any suggestion that the building containing those enclosures is highly visible from a significantly trafficked public space – unlike the Rushcutters Bay Park relationship with the building in which Mr MacLeod's apartment is located.

Other household items on balconies

140. Although the proposition was advanced on behalf of Mr MacLeod that many household items of differing types were observable behind the balustrades of many apartments on the northern façade of the building and that this provided an appropriate basis to conclude that such visual impact as would arise from Mr MacLeod's proposal should be regarded as being similar to, and not discordant with, the impression from such other objects.

141. I am unable to accept this proposition. I accept that a range of objects at various balcony locations were observed during the course of the site inspection.

142. However, there are two distinct differences between any of those balcony‑located elements and what is proposed for Mr MacLeod's balcony. Those differences are, first, that the objects were clearly behind the balustrades of, and further into, the balcony of each relevant unit. Second, for each such balcony, what was able to be observed occupied but a portion of the balcony where it was located, unlike Mr MacLeod's proposed development which, when operating in the closed position, will occupy the whole of the façade of his balcony from the point of the (proposed to be installed) new fixed glass panelling only a little inboard from the balustrading rails and framework which are intended to remain.

Conclusion

143. For the reasons discussed above, I am satisfied that Mr MacLeod's proposed development breaches the controls of the DCP and, if approved, would, in itself be discordant with the appropriate preservation of the symmetrical external northern façade presentation of the building and, if approved, would also be an undesirable precedent, which would have significant potential to encourage haphazard and random similar applications with respect to other apartments with balconies on the northern façade of the building. This is incompatible with the final objective of the B4 zone.

144. Although that which is proposed by Mr MacLeod would undoubtedly provide a significant improvement in his and his wife's amenity, that improvement does not outweigh the extent of the undesirable planning consequences that would arise from it being permitted.

145. It is therefore necessary to refuse Mr MacLeod development consent for his proposed development.

Orders

146. The orders of the Court are:

1. The appeal is dismissed;

2. Development Application DA 164/2019 for removal of the existing glass panels of a balustrade and the installation of a new balustrade (to the rear of the remaining framework) topped by sliding, foldaway glass panels attached to an aluminium extension to the existing balcony awning at 1002/85-97 New South Head Road, Edgecliff, is determined by the refusal of development consent; and

3. The exhibits, other than Exhibit A, are returned.

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Decision last updated: 24 December 2020