Panos v Inner West Council

[2018] NSWLEC 1284

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Panos v Inner West Council [2018] NSWLEC 1284

Hearing dates:

4-5 June 2018

Date of orders:

02 July 2018

Decision date:

15 June 2018

Jurisdiction:

Class 1

Before:

Walsh C

Decision:

The Court orders:

(1)     The clause 4.6 variation written request in regard to site coverage is upheld.

(2)     The appeal is upheld.

(3)     Inner West Council Development Application No. D/2017/424 for alterations and additions to an existing cottage at 16 River Street Birchgrove, including: alterations to the existing cottage, a new pool, a new three storey structure (for residential use and interconnected with the existing cottage), parking for two vehicles above this new structure (with street level access), bin storage on this street level pad, and a lift linking the residence below with the parking and street level; is approved, subject to the conditions in Annexure A.

(4)     The exhibits are returned with the exception of Exhibits 1, G and H.

Catchwords:

DEVELOPMENT APPLICATION: residential alterations and additions – carport - view loss - streetscape

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Leichhardt Development Control Plan 2013
Leichhardt Local Environmental Plan 2013
State Environmental Planning Policy No. 55 (Remediation of Land)
Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005

Cases Cited:

Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046
Tenacity Consulting v Warringah [2004] NSWLEC 140

Category:

Principal judgment

Parties:

Constantine Peter Panos (Applicant)
Inner West Council (Respondent)

Representation:

Solicitors:
G Green, Pikes & Verekers Lawyers (Applicant)
S Turner, Inner West Council (Respondent)

File Number(s):

2017/361171

Publication restriction:

No

Judgment

1. This is an appeal against the deemed refusal of Inner West Council Development Application No. D/2017/424 (DA). The DA seeks consent for alterations and additions to an existing cottage at 16 River Street Birchgrove (site). The proposed changes include: alterations to the existing cottage, a new pool, a new three storey structure (for residential use and interconnected with the existing cottage), partially covered parking for two vehicles above this new structure (with street level access), some storage on this street level pad (nominated as “bin store” in the final plans), and a lift linking the residence below with the parking and street level. The site is on the waterfront and enjoys significant views to Parramatta River and Cockatoo Island and the environs. The views from River Street (above the site) and nearby properties are also significant and were a key issue in the evaluation of the application.

2. The appeal was subject to mandatory conciliation on 5 June 2018, in accordance with section (s) 34AA of the Land and Environment Court Act 1979 (LEC Act). These proceedings commenced with a site view and the hearing of submissions from objectors.

3. Two objectors spoke and concerns were raised about loss of views for local residents and for walking groups who use River Street. There was a concern about what was seen as an unreasonable benefit to the applicant, at a cost to others. The local sense of community was emphasised by both speakers. In addition, Mr Nash, a town planner, spoke on behalf of three of the property owners living opposite the site and fronting River Street (5 River Street, 3 River Street, 37 Reuss Street). Mr Nash led the Court through each of these properties and referenced his evidence on view loss, as did the experts for both the parties. I was also taken to other viewing points in the vicinity, including public viewpoints from River Street in front of the site and Reuss Street and Cove Street which run perpendicular to River Street. Mr Nash suggested a number of ameliorative measures to reduce the impact of the building, including: use of glass for any fences and for the lift above ground level, and a more lightweight roof structure if the roof were to proceed at all. Mr Panos also spoke in support of his application, noting the changes that had occurred since the original application and his belief that a reasonable balance is now available in terms of potential impacts and his family’s aspirations for their home into the future.

4. While the conference stage involved considerable interaction between the parties and their experts, ultimately agreement was not reached. In turn the conference was terminated and the matter progressed to a hearing in the Court, starting later on the same day. The parties brought forward amended plans to the hearing which came about as a result of the conference dialogue, which are discussed below.

The site and setting

5. The site is located on the western side of River Street near its intersection with Reuss Street. The site is almost rectangular in shape and falls steeply from River Street to the Parramatta River. There is a rock cliff face evident near the road reserve boundary. The site has an area of 261m2. The site presently accommodates a single storey cladded dwelling house with metal roof that faces Parramatta River. There is currently no vehicular access to the site. The site is accessed by a stairway that also provides access to 14 River Street. The stairway is partially located on Council land.

6. Residential apartments are located to the north of the site at 18-20 River Street with a driveway crossover to a basement garage immediately adjacent to No.16 at the River Street Frontage. 14 River Street (to the immediate south) is a vacant excavated site. Council advises that the site has an approval for two attached dwellings and a swimming pool. The advice is there are also two current modification applications under consideration for this adjoining site. Notably, the approved application has a double parking space at street level with no roof covering.

7. While the site and its environs are within a conservation area, the surroundings are characterised by a mix of dwellings with some older historic residences having a single storey appearance to the street with varying roof forms and some newer dwellings having open uncovered parking/access to parking to the street. Located to the east of the site on the opposite side of River Street are two storey dwelling houses with single driveway crossovers.

8. A significant issue is the expansive views which are currently available to the public from in front of the site at River Street. These views look over Parramatta River and the land water interface of Cockatoo Island and the land water interface of part of the Woolwich/Greenwich area. The proposal would affect these public views.

9. The two storey dwellings east of the site on the opposite side of River Street also currently enjoy views across the subject site towards Parramatta River, some of which would be affected by the proposal.

The proposal

10. There have been modifications to the proposal since the appeal was first lodged. Leave was granted to rely on amended plans on 17 April 2018, which Council advises were notified to residents. This amendment reduced the bulk of the proposed car accommodation structure at the street level compared to that initially proposed. It proposed an open cantilevered structure some 3.21m in height from hardstand to the carport ridge. This structure was subsequently described by Mr Moore (Council’s heritage expert) as “overtly modern” in character, and “unnecessarily obtrusive”. Mr Moore encouraged a “simpler structure”. The plans which were developed during the conciliation conference were an attempt to address Mr Moore’s concerns while also addressing the wider contentions in regard to view loss, visual impact and streetscape character compatibility.

11. Leave was ultimately granted for use of these plans which provided for a more regular roof structure, with a smaller footprint, reduced length to River Street and with the height reduced to some 2.55m. The amended plans also reduced the amount of, and provided further detailing on, the fencing around the carport area. Fencing had been, in part, 1.8m in height. The amended proposal provided for 1.2m high fencing and reduced its extent internally within the carport area. While the intent was already to have open fencing with vertical battens, the detailing of the width and spacing of battens was provided (25mm diameter at 125mm centres). The lift structure remained, however its materials at the street level and colours were detailed (zinc clad of a darker grey colour matching the roof and fencing). The rest of the proposal (a new three storey building below the car parking level, alterations the existing cottage and new pool) did not alter significantly with the amended plans. Although it warrants mention that there was agreement to a condition that the building works would not come into contact with the rock face (other than minor trimming at ground level for footings).

Statutory framework

12. The site is zoned R1 General Residential under the Leichhardt Local Environmental Plan 2013 (LEP) and the proposal is permissible in the zone. The proposal has a floor space ratio of 0.76:1 which complies with the floor space ratio standard of 0.9:1. The proposal meets the soft landscaping requirements. The proposal has a site coverage ratio of 65.59% which exceeds the permissible site coverage of 60% (see cl 4.6 request below). Other important controls relate to view loss and are contained within Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 and the Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005. Leichhardt Development Control Plan 2013 (DCP) and in particular the streetscape, view loss and urban character considerations for “Birchgrove Distinctive Neighbourhood” are also relevant.

Site cover contravention and clause 4.6 Request

13. A written request was provided to seek an exception to this contravention under cl 4.6 of the LEP. The planning experts agreed that the site coverage of the building is compatible with surrounding development was considered reasonable. I have reviewed the zone objectives, the objectives of cl 4.3A of the LEP and the applicant’s written request and have come to the conclusion that: (1) the written request has adequately addressed the matters required to be demonstrated by cl 4.6(3) of the LEP, and (2) 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 its zone.

Issues

14. The contentions Council brought to the hearing can be summarised as follows: (1) public view loss, (2) private view loss and (3) streetscape impact including in regard to heritage. These issues are considered in turn below. Evidence on the question of view loss was provided by Ms McCabe for the applicant and by Ms Walker for Council. The heritage experts (Mr Stapleton for the applicant and Mr Moore for the Council) gave advice on the form of the street level structure and related streetscape and heritage issues. There were other issues initially raised which were able to be attended to by way of conditions. These are also examined briefly below.

Public view loss

15. The view available from directly in front of the site is significant. The open outlook across this private land is uncommon and from the evidence valued highly by some local residents, given the density of built form otherwise in the surrounds, and the fact that trees and bush tends obstruct view lines down public road alignments which otherwise run down towards the water (in this case Reuss Street and Cave Street). Further, Council’s evidence pointed to the fact that “River Street is on the route for Huntleys Point to Balmain on the Walking Coastal Sydney Walk” which is “designed to showcase Sydney’s coastline and harbour”. It is not difficult to understand why, with the views available from here of waterways and foreshores, with Cockatoo Island most prominent.

16. Ms Walker’s evidence (planning expert for Council) is that a number of policy instruments emphasise view protection relevant to this application, and that the application did not satisfy these policy requirements due to the loss of public views which would occur as a consequence of it. The policy references included: the LEP (e.g. LEP aims at cl 1.2(k) protecting and enhancing views and vistas of Parramatta River), the DCP (where “Place” provisions applying to the Birchgrove Distinctive Neighbourhood specifically reference: “(preserving) and where practicable, (enhancing) public and private views over … Parramatta River”, “(protecting) vistas and views from the public domain” and “(promoting) view sharing”).

17. Ms Walker also referenced the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, a deemed State Environmental Planning Policy (SEPP). The SEPP also has concerns in regard to views, and for the SEPP this section of Parramatta River is certainly within the Sydney Harbour Catchment. The aims of the SEPP warrant reproduction:

2   Aims of plan

(1)  This plan has the following aims with respect to the Sydney Harbour Catchment:

(a)  to ensure that the catchment, foreshores, waterways and islands of Sydney Harbour are recognised, protected, enhanced and maintained:

(i)  as an outstanding natural asset, and

(ii)  as a public asset of national and heritage significance,

for existing and future generations,

(b)  to ensure a healthy, sustainable environment on land and water,

(c)  to achieve a high quality and ecologically sustainable urban environment,

(d)  to ensure a prosperous working harbour and an effective transport corridor,

(e)  to encourage a culturally rich and vibrant place for people,

(f)  to ensure accessibility to and along Sydney Harbour and its foreshores,

(g)  to ensure the protection, maintenance and rehabilitation of watercourses, wetlands, riparian lands, remnant vegetation and ecological connectivity,

(h)  to provide a consolidated, simplified and updated legislative framework for future planning.

(2)  For the purpose of enabling these aims to be achieved in relation to the Foreshores and Waterways Area, this plan adopts the following principles:

(a)  Sydney Harbour is to be recognised as a public resource, owned by the public, to be protected for the public good,

(b)  the public good has precedence over the private good whenever and whatever change is proposed for Sydney Harbour or its foreshores,

(c)  protection of the natural assets of Sydney Harbour has precedence over all other interests.

18. Ms Walker’s evidence also referenced the SEPP’s “planning principles”, which included the following:

14 Foreshores and Waterways Area

The planning principles for land within the Foreshores and Waterways Area are as follows:

…

(d) development along the foreshore and waterways should maintain, protect and enhance the unique visual qualities of Sydney Harbour and its islands and foreshores.

Ms Walker also referred to certain “matters for consideration” in DA assessment raised in the SEPP:

26   Maintenance, protection and enhancement of views

The matters to be taken into consideration in relation to the maintenance, protection and enhancement of views are as follows:

(a)  development should maintain, protect and enhance views (including night views) to and from Sydney Harbour,

(b)  development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items,

(c)  the cumulative impact of development on views should be minimised.

19. Sydney Harbour Foreshores and Waterways Area Development Control Plan 2005, was also referenced by Ms Walker, including a general aim to “minimise any significant impact on views and vistas from and to: - public places, landmarks identified on the maps accompanying the DCP, and heritage items” (cl 3.2). Ms Walker also noted explicit Leichardt DCP provisions regarding views some of which are referenced below.

20. Ms McCabe’s evidence can be summarised as centring on three principles. The first is that the views currently enjoyed only occur by default:

The streetscape response to this street for built form would (views aside) call for low scale (single storey) structures, located close to the front boundary with minimal side boundary setbacks.

The views are enjoyed by default because unlike other buildings in the street development has not occurred.

It is related to a second point which is that “these public views across private property should (not) reasonably be expected to be retained”. That is to infer certain “default” development rights apply for, some, “low scale (single storey) structures”. The suggestion is that, notwithstanding the policy ambitions highlighted above, certain (e.g. low scale structures) should be expected even if they were to disrupt to an extent harbour views (I note the first R1 zone objective here which aligns somewhat with this point). Ms McCabe’s third point, as I summarise them, is that the open built form of the proposal at this River Street level means that reasonable views to Parramatta River and foreshores (including Cockatoo Island) would be maintained with the proposal in any event.

21. Both planning experts referenced the Court’s planning principle on “public domain views” from Rose Bay Marina Pty Limited v Woollahra Municipal Council [2013] NSWLEC 1046. However, I note that the expert reports only went so far in the application of the Rose Bay Marina planning principle. The expert reports went through the “five steps” that is the “procedural” stage, but were limited in the “analytical” stage of this planning principle.

22. Below I evaluate the evidence, mindful of this planning principle, starting with the procedural stage (“the five steps”) and following with the analytical stage.

Identification of the views from the public domain

23. Nature and scope of views - the public domain views are of Parramatta River, Cockatoo Island and the land-water interface of Cockatoo island, Gladesville Bridge and the land – water interface at Woolwich and partial views of the land – water interface at Greenwich. These views are generally unobstructed as one walks along River Street. I also note that experts indicate that “Cockatoo Island is UNESCO (United Nations Educational, Scientific and Cultural Organisation) world heritage listed” (Exhibit 2).

24. Locations where view interrupted - The views would be disrupted for the subject land’s River Street frontage and view lines across and to it for walkers within River Street and at the bottom of Reuss Street.

25. Extent of obstruction - The extent of the obstruction defined by Ms Walker in her evidence is now lessened with the amended plans, and the reduction in height of the fencing and the (relatively) open fencing that is proposed. Obviously when cars are parked on the pad more view would be lost than when not. The lift structure would also reduce views. The roof structure occupies about half of the pad when viewing square to the property boundary, but would affect the views for a greater extent of the viewing positions along River Street due to the angle of the property boundary to River Street (while the size of the structure was bigger, the angle of the carport in the immediately prior plans was in a sense more responsive to view effects).

26. Intensity of use - Ms McCabe’s evidence is that “views are available to a small number of local residents in the surrounding area as they traverse the street … (it) is not a public vantage or viewing point, or a gathering space”. I disagree with this point, noting Ms Walkers evidence that “River Street is on the route for Huntleys Point to Balmain on the Walking Coastal Sydney Walk” which is “designed to showcase Sydney’s coastline and harbour”. That is not to assume that this is a regular and enormously popular walk every day or weekend, but that the walk in front of River Street is mapped as part of a regional walkway and has more than local use and value.

23. Documentation identifying importance of views - I note there are policy references (above) that speak generally about protecting and enhancing views into the harbour and Parramatta River, but I have not been presented with any evidence referencing this particular view from River Street.

Analysis

28. This planning principle’s analytical phase turns to quantitative and qualitative evaluation. The quantitative or “objective” aspect refers to provisions in policy instruments, and provides, in part:

52 If there is a planning document with an objective/aim for the maintenance, protection and/or enhancement of public domain views, such an objective/aim would appear to create a presumption against the approval of a development with an adverse impact on a public domain view. However, merely adopting and applying such a presumption would be entirely inappropriate.

53 The relevant weight to be given to such an objective/aim will depend on the status of the document containing it and the terms in which it is expressed. An objective/aim proposing "preservation" of views may be accorded a differing weight to one that proposes "minimisation of impacts" on such a view.

29. The planning principle is suggesting an examination of “terms” and “expression” in the planning instruments. With that in mind, first I note that the “planning principles”, as nominated in Part 2 of the SEPP (relevantly, cl 13 and cl 14 as referenced above), are “to be considered and, where possible, achieved” in the preparation of relevant planning instruments – so here they are directing the preparation of LEPs and DCPs rather than DAs.

30. Clause 26 refers to the terms “maintain, protect and enhance views” and “minimise any adverse impact on views”; both as “matters for consideration” in DA assessment. Clause 26 is establishing matters which would sit with other matters for consideration in any development application.

31. Then I note the aims of the SEPP (cl 2, again cited above). I also note the provision within the aims, referenced by Ms Walker, that “the public good has precedence over the private good” (cl 2(b)). Clause 2(b) when read completely notes that its (the subclause’s) purpose is in enabling the aims at cl 1 of the SEPP. Clause 2(1) does not make explicit reference to view loss. It is certainly concerned with the higher ideals and public benefits associated with sustainable management of the harbour and foreshores, and how we view the harbour and foreshores comes under that umbrella. Clause 2(b) provisions would engage when higher ideals and public benefits come into question, which may be the case in some instances where there is view loss from the public domain. Nevertheless the phrasing of the SEPP does not bring me to the view that a presumption against the approval of any development which has any adverse impact on public views. There is something less strident than a requirement for “preservation” of views and more a suggestion of considering the circumstances of the case.

32. In reference to the LEP and DCP (which can be assumed were prepared mindful of the SEPP planning principles discussed above) I interpret the suggestion of balanced assessment, rather than, again, a strong presumption against development with any adverse impact on a public domain views. There is the objective of protecting and enhancing views and vistas (LEP cl 1.2(k)(i)), but also of view sharing (LEP cl 1.2(k)(ii)). Both experts pointed to cl C3.10 of the DCP, the section entitled “Views”, reproduced in part below.

Objectives

O1 Protect vistas and views from the public domain.

O2 Recognition of the value of existing views from private dwellings and allow for the reasonable sharing of views between private properties.

Controls

C1 New development should be designed to promote view sharing (i.e. minimise view loss to adjoining and adjacent properties and/or the public domain while still providing opportunities for views from the development itself).

C2 Design solutions must respond graphically to the site analysis outcomes through the use of plans, elevations, photographs and photomontages to demonstrate how view sharing is to be achieved and illustrate the effect of development on views. In some cases, reasonable development may result in the loss of views, but new development must not significantly obstruct views. C3 Development shall be designed to promote view sharing via: a. appropriately addressing building height, bulk and massing; b. including building setbacks and gaps between buildings; c. minimise lengthy solid forms; d. minimise floor to ceiling heights and use raked ceilings in hipped / gabled roof forms where appropriate, especially in upper floors; e. splay corners; and f. use open materials for balustrades, balconies, desks, fences, car ports and the like.

33. So my conclusion here, on what I am interpreting to be an objective or quantitative interpretation of the actual controls, is that it is reasonable to assume some flexibility rather than a severe position that protects against, more or less, any impact on views to the public domain.

34. When one moves to the qualitative evaluation under Rose Bay Marina’s principles, there is no doubt that the views from the public domain here are high quality. To evaluate the merits, there is a need to link the following factors: (1) the extent of obstruction and (2) the intensity of public enjoyment which is experienced. Having regard to the latter, a third factor arises which parallels the planning principle for private view loss (Tenacity Consulting v Warringah Council [2004] NSWLEC 140 (“Tenacity”) at 25-29). Tenacity suggests the need to assess the extent of the impact on the basis of the “whole of the property”. When one considers the public enjoyment of the view from the subject land for those enjoying the Walking Coastal Sydney Walk (brought into attention by Ms Walker), there is a need to consider the site view loss in the context of one actually taking this “walk” (or at least some significant part thereof).

35. I understand that this walk experiences significant harbour views in many locations. It seems reasonable to conclude that this River Street view experienced along a public road, without any space particularly to stop and rest, is more likely to be something walkers enjoy as something outstanding of itself, but “take in their stride” so to speak, enjoying the moment but also on the way to other spots where one might sit and rest for a while, perhaps on the foreshore itself, to enjoy for a longer period. My conclusion is that there is some concentration of public enjoyment of this open view available here from River Street, and that significant obstruction of the view would reduce that enjoyment.

36. The extent of the obstruction then needs to be considered. I note that the amended plans do reduce this obstruction when compared to the plans originally before the Court and those for which leave was originally granted. Two things follow from that. The first is procedural. I agree with Mr Green’s point that the process followed here seems quite aligned with the DCP’s interest in view sharing and the analytics involved in it. Nonetheless, Ms Walker remained of the opinion that, at a minimum, the canopy and lift should be removed due to view loss and Ms McCabe disagreed, based on reasonable development rights.

37. An argument from the applicant was that harbour views in the locality were generally only available between buildings. This point notes the generally built up nature of the locality. It was suggested I familiarise myself with other local waterfront streets to appreciate this (eg Louisa Rd Birchgrove). However, for me, this does not help the applicant’s case in this part of the public domain view assessment process. Rather, the view which is open now to the public from River Street is therefore somewhat rare, which seems to me to highlight its value. The point about established building patterns is relevant in assessing the question of the “reasonableness” of the development proposal. This question is not examined in detail in the planning principle for public domain views, beyond the suggestion that “the process must account for reasonable development expectations” [42]. This question of the reasonableness of the proposed development is examined more fully in Tenacity and I will consider it below when the question of private view loss is considered.

38. To combine the quantitative and qualitative elements of this planning principle’s analytical stage, and with particular reference to Rose Bay Marina paragraph [50], the public view remaining (if the development were to be approved) would in my opinion be sufficient to “understand and appreciate the nature” of the existing view. But this quite rare, open view across the waterways and to Cockatoo Island would be clearly obstructed by the proposed car parking, fencing and roof structure. This represents something other than “the public good (having) precedence over the private good” (cl 2(b) of SEPP). However, as indicated at paragraph 31 this need not of itself be determinative of the application. There is a need for more close consideration of the reasonableness of the proposal which I do below in consideration of the evidence on private view loss, with Tenacity as a framework to assist.

Private view loss

39. A detailed examination of the views from private residences was provided in the expert reports jointly prepared by Ms Walker and Ms McCabe, including through reference to the Tenacity planning principles. The view loss was examined from 1, 3, 5 River Street and 14 and 37 Reuss Street.

40. The evidence suggests that significant view loss would result principally from the lower or ground level of the affected dwellings. Views are generally maintained at upper levels. I agree with the experts that the most significant view loss, by a margin, would be from the ground level of 37 Reuss Street, and this property can be the point of concentration in the rest of this analysis.

41. The first step in Tenacity is concerned with the assessment of available views. The experts agree that private views are of Parramatta River, Cockatoo Island and the land-water interface of Cockatoo Island, Gladesville Bridge and the land – water interface at Woolwich and partial views of the land – water interface at Greenwich. These views would be described, at least, as “high value” views when considering Tenacity.

42. The second step in Tenacity is concerned with appreciating from what part of the property the views are obtained. The experts note that for 37 Reuss Street the views are experienced from key living areas (kitchen, dining area and living area) and from the outdoor private open space. Relevant to Tenacity [27], the existing views are enjoyed across the front boundary and from standing positions, in a sense prioritised in Tenacity [27].

43. The third step in Tenacity is concerned with the extent of impact, noting that this should be done for the whole of the property rather than only for the affected views. The experts found the proposal would have a severe impact on views from the important living areas described above, and found an overall impact of moderate to severe. Evidence was provided by way of photomontages intended to provide a “sketch” of the potential impact of the proposal on views (Exhibit I). I note that these written conclusions in the joint expert report were provided before the full changes to the fencing and roof structure included in the final amended plans were considered, however no significant change on this position was suggested at the hearing, during expert evidence. Setting that aside, my conclusion is also that the proposal would have a severe impact on existing high quality views enjoyed from the main living areas from 37 Reuss Street, and given the importance of these spaces (recognising Tenacity [28]) more severe than moderate overall.

44. Tenacity’s fourth step is to assess the reasonableness of the proposal. Ms McCabe argues that the proposal is generally in accordance with the planning controls and therefore the proposal warrants approval (it is agreed that the site coverage control is not related to the view loss question here). She also argues that it is unreasonable to retain ground floor views across a road reserve and private property. Ms Walker’s position is that there are a number of provisions from the LEP (cl 1.2(k)(ii)) and DCP (C2.2.2.6 – C3, C3.10 – O2, C3.10-C1) that are concerned with view sharing and protection in settings like this which are not complied with.

45. A central point of Ms Walker’s position is that aspects of the proposal which have a significant view loss impact are “unnecessary”:

The proposed carport roof is considered unnecessary given the view loss impacts. Car parking can be provided without a cover. Likewise the proposed garbage store area is considered unnecessary given view loss impacts. The proposed lift to street level is considered unnecessary given the view loss impacts and given the proposal is a single residence.

46. I see sense in this way of examining the question of the reasonableness of the proposal, under Tenacity. I do accept the point that there have been design efforts to minimise visual impact of the above-pad structures with the amendments to the proposal. But there is a more basic question about the type of development, and what might be defined as a reasonable perception of its benefit or inherent value when view sharing in very sensitive locations is under scrutiny. This is considered in the findings below.

Streetscape

47. Mr Stapleton was already satisfied that the original proposal was satisfactory in streetscape and heritage terms. Mr Moore sought modifications and the applicants allowed him to provide considerable guidance in the amendment of the proposal to satisfy his concerns, noting the conservation area status of the site, but mindful in my understanding, of a more general ambition in regard to streetscape character compatibility. The amendments to the roof structure and fencing were seen by the experts to minimise streetscape impact.

Other issues

48. Issues to do with: potential impact on the existing rock face, pedestrian access to 14 River Street (i.e. next door to the south), heritage and remediation; were in contention initially. However ultimately these each were agreed as able to be addressed by way of conditions, including with deferred commencement conditions. Deferred commencement conditions were suggested (without prejudice) in regard to works in the road reservation to maintain pedestrian access to 14 River Street in accordance with the current approvals for that site (D/2011/453) and to ensure that the existing rock face would not be adversely affected. I note that there was positive commentary from heritage experts from both sides on the intentions in regard to the existing cottage at the foreshore.

Lay submissions

49. The objections expressed during the site view were centrally concerned with view impact and have been considered in the discussion above.

Findings

50. While the development application is much more than the proposed street level car parking, lift structure, roofing, bin storage and fencing; the view loss as a consequence of these aspects is the central issue with this matter. The assessment is centred on the balancing of, on the one hand, private development rights and on the other hand the protection and/or sharing of views from both public and private lands (in this case high quality water views). With a view to the assessment above, when I consider this balancing it does seem to me reasonable that some parking be provided for this dwelling. Parking is clearly relatively scarce and its provision would assist the occupants, significantly. There is also precedent here in regard to the approved development at 14 River Street. Here, overall, I acknowledge the view impact of a parking pad as proposed as reasonable.

51. It also seems to me that given the changes in level involved on this site, a small lift structure, if it can be designed and located with some consciousness of visual impact, would assist residents considerably (I am mindful here of access for people with disability and the aims of the LEP (cl 1.2(2)(h)). These design issues have been considered in part already in the preparation of amended plans.

52. But, it seems to me that the benefit of providing a roof (albeit a relatively light structure) to cover a car must be thought of as unreasonable when it is balanced against the direct view loss experienced as a consequence, privately and publicly. From the public view points in front of the site, the roof would interrupt and frame-in what is now, and could still be even with the parking pad, the expansive water/land/sky views from above the site. A roof would also directly reduce further the remaining visual amenity within the key living areas of 37 Reuss St, even if the rest of the street level development was to occur.

53. Based on the evidence and other otherwise agreed conditions, with the exception of the carport roof structure, it seems to me the development can be approved (the commendations from the heritage experts on the applicant’s intended treatment of the existing cottage, and covered by plans and conditions, is noted). I have drawn my mind to the possibility of the lift being seen as out of context on the parking pad. This does not concern me greatly given its location towards the side of the pad and the fact that it might help screen bins, likely to be stored on the pad anyway. If planter boxes were proposed by the parties to assist with any visual impact of the lift, and agreed between the parties, leave would be granted for this to occur. For the record I note that if there are other technical issues which require the lift to be roofed, then the priority would need to go to no roof and the lift would need to be removed from plans.

54. Subject to the agreement of the applicant, final plans should be prepared which remove the roof structure. These plans can also pick up the handwritten notations at Sheets 02-04E and 02-14E (Exhibit G). Final conditions are to be prepared which reflect the revised plans.

Directions

55. The Directions of the Court are:

1. The applicant is to file and serve final plans which address the matters in paragraphs [53] and [54] by 27 June 2018.

2. The Council is to file and serve agreed conditions which address the matters in paragraph [53] and [54] by 27 June 2018.

3. The parties have liberty to restore on two days’ notice.

4. Upon receipt of satisfactory final plans and agreed conditions, I will issue Orders in chambers which uphold the clause 4.6 variation written request in regard to site coverage, and uphold the appeal and approve the development application.

Addendum made on 2 July 2018

56. In accordance with the terms of directions in paragraph [55] of my judgment of 15 June 2018, the parties provided me with agreed plans and conditions of consent. I am satisfied that consent to the application should be granted, as the appeal is an appeal under s97(1) of the Environmental Planning and Assessment Act 1979, and that the conditions of consent accord with my findings. Accordingly I make orders in chambers as follows:

1. The clause 4.6 variation written request in regard to site coverage is upheld.

2. The appeal is upheld.

3. Inner West Council Development Application No. D/2017/424 for alterations and additions to an existing cottage at 16 River Street Birchgrove, including: alterations to the existing cottage, a new pool, a new three storey structure (for residential use and interconnected with the existing cottage), parking for two vehicles above this new structure (with street level access), bin storage on this street level pad, and a lift linking the residence below with the parking and street level; is approved, subject to the conditions in Annexure A.

4. The exhibits are returned with the exception of Exhibits 1, G and H.

____________

P Walsh

Commissioner of the Court

Annexure A (175 KB, pdf)

Final Plans (5.67 MB, pdf)

Amendments

02 July 2018 - Addendum with final orders added.

03 July 2018 - Pursuant to UCPR 36.17, the slip rule, by consent of the parties amend order (3).

Decision last updated: 03 July 2018