Parker Logan Property Pty Ltd v Woollahra Municipal Council

[2018] NSWLEC 1336

Land and Environment Court

New South Wales

Medium Neutral Citation:	Parker Logan Property Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1336
Hearing dates:	19-20 April 2018, 7 June 2018
Date of orders:	11 July 2018
Decision date:	11 July 2018
Jurisdiction:	Class 1
Before:	Walsh C
Decision:	The orders of the Court are: (1)   The appeal is upheld. (2)   Development application DA169/2017/1 for alterations and additions to an approved residential flat building development at 9A Cooper Park Road, Bellevue Hill, is approved subject to the conditions of consent at Annexure A. (3)   The Court notes: the parties agree to the amount of $4,000 in relation to the Council's costs thrown away, with those costs to be paid to the Council within 28 days of the date of these orders. (4)   The exhibits, other than Exhibits 2, E and G, are returned.
Catchwords:	DEVELOPMENT APPLICATION: Residential flat building, SEPP affordable rental housing, view loss
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 State Environmental Planning Policy No 65—Design Quality of Residential Flat Development
Cases Cited:	Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 Segal v Waverley Council [2005] NSWCA 310 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 Tenacity Consulting v Warringah [2004] NSWLEC 140 Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Texts Cited:	Apartment Design Guide
Category:	Principal judgment
Parties:	Parker Logan Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Counsel: A Galasso SC (Applicant)   Solicitors: Boskovitz and Associates (Applicant) S Patterson, Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	2017/171979
Publication restriction:	No

Judgment

1. This is an appeal against Woollahra Municipal Council’s deemed refusal of development application No. DA169/2017/1. The development application (DA) proposes alterations and additions to an approved (although unbuilt) residential flat building development at 9A Cooper Park Road, Bellevue Hill (DA607/2015).

The Proposal

2. The DA which is the subject of these proceedings (DA169/2017/1) would involve the following alterations and additions to the works approved with DA 607/2015:

• An additional level (Level 3) to an approved residential flat building (Building B) comprising 1 x 3-bedroom unit, and a lowering of Building B by 1 metre compared to DA 607/2015.

• A new 2-storey residential building (Building C) comprising 4 x 2-bedroom attached dwellings.

• An extension to the approved basement (excavating a further 1.15 metres) and reconfiguration of the approved parking to accommodate an additional 6 car parking spaces, storage areas, substation and plant room, and further excavation.

• Ancillary and incidental works including site works, landscaping, fencing and drainage; as well as strata subdivision.

• A reduction in the communal open space area indicated in DA607/2015.

3. The table below outlines the changes proposed:

Approved (DA607/2015)	Alterations and additions proposed with DA169/2017/1
Building A	3-Storey 15 units (11 x 2-bed units & 4 x 3-bed units)	Incidental changes only.
Building B	2-Storey 12 units (10 x 2-bed units & 2 x 3-bed units)	3-storeys 13 units (10 x 2-bed units & 3 x 3-bed units) Approved storeys 1 and 2 lowered by 1.0m
Building C	N/A	2-Storey 4 units (4 x 2-bed units)
Car parking	56 vehicles	62 vehicles Driveway/basement extended and also lowered 1.15 metres.

Background

4. The history of the site and its planning (and development aspirations) has some pertinence to the appeal, in particular to the submissions made by objectors.

5. The main portion of the subject land was formerly in use as a bowling green, and the naturally steep land had been levelled-out for this purpose. A notable structural element was a constructed retaining wall along the south-western boundary (up to 7-8 metres in height), separating the bowling green from the residential land to the south.

6. Some years later the bowling green was rezoned and sold off by Council. The planning processes surrounding the rezoning of the site involved significant public participation. A number of objectors to this current application were also parties to the planning exercises for the rezoning of the site.

7. A site specific development control plan (DCP) was prepared for the site which in part at least was concerned with cushioning the effects of any future development on the subject land upon neighbours. This DCP was raised in the objections to the subject proposal and comes to some attention below.

8. There have already been proceedings before the Court for development on the subject land. An appeal against Council’s refusal of a DA/111/2015 for 29 apartments, involving two parallel buildings, was dismissed on 13 November 2015. The Court was dissatisfied with neighbour amenity impacts. Then in September 2016 an amended proposal was approved by the Court (DA607/2015) for two parallel buildings after agreement was reached between the parties. This proposal comprised a western building (Building A) of three levels and an eastern bounding (Building B) of two levels, for a total of 27 apartments. Basement parking for 56 vehicles was provided. This agreement occurred after conciliation under section (s) 34(3) of the Land and Environment Court Act1979.

9. The current application now is seeking to expand the scale of development, for which agreement had previously been reached by the parties in this conciliation process. A key factor in the current application is that it seeks to provide a proportion of affordable housing. As explained below, and subject to certain conditions, under State Environmental Planning Policy (Affordable Rental Housing) 2009, (SEPP - ARH) there are opportunities for developers to secure bonus floor space, when there is a commitment to affordable rental housing in a project. This opportunity is taken up in the subject application.

The site and its context

10. The site is 3,906sqm in area and is irregular in shape. The site does not have a street frontage and motor vehicles would access the via an access corridor on the north-western side of the site, located between 7 and 11 Cooper Park Road. The site is currently vacant although construction works are well underway for the approved development.

11. The natural topography of surrounding lands is that of a south/west facing hillside but including significantly modified contours arising from earlier development for various forms of residential building and associated works (swimming pools, tennis courts and the like).

12. Along its southern boundary, the site abuts 11, 17 and 17A Cooper Park Road. 11 and 17 Cooper Park Road present as detached dwellings. 17A Cooper Park Road is a ‘villa development’, consisting of a number of individual buildings. Numbers 58 to 72 Bellevue Road generally abut the site’s northern boundary. A number of these properties have swimming pools and tennis courts on level pads below the main residences. 60 Bellevue Rd is a residential flat building which similarly “falls” down the slope from Bellevue Rd towards the subject land, with Unit 5 in 60 Bellevue Rd, the apartment nearest the site’s northern boundary (see below for discussion of development implications for neighbouring properties).

Planning framework

13. The site is zoned R3 Medium Density Residential under Woollahra LEP 2014 (LEP) and the development is permissible in the zone.

14. The floor space ratio (FSR) development standard for the site under LEP 2014 is 0.63:1. The applicant is seeking a gross floor area bonus 0.2:1 under SEPP - ARH (the applicant nominates certain units which would have a caveat imposed upon them as ‘affordable’ housing). This would bring allowable FSR up to 0.83:1. The proposed development would comply.

15. A 9.5m building height standard applies under cl 4.3 of the LEP (which in accordance with all NSW standard template LEPs is measured from existing ground level and disregarding excavation). The proposal would comply.

16. Clause 6.2 of the LEP sets out matters for consideration where earthworks are proposed. Significant excavation (4940m3) was approved under DA607/2015, significant additional excavation would be involved with the current application.

17. The proposal is subject to the provisions of State Environmental Planning Policy No 65 – Design Quality of Residential Flat Buildings (SEPP 65) and the ‘Apartment Design Guide’ (ADG).

18. Chapter G4 of Woollahra Development Control Plan (DCP) 2015 explicitly applies to 9A Cooper Park Road (the site). This component of the DCP was developed with the specific purpose of guiding development of the former Council-owned land, with objectives relating to guiding design and siting to address the amenity of adjoining properties and reflect view sharing principles.

Issues before the hearing

19. In accordance with the Court’s requirements, in a hearing such as this, Council is required to identify matters that it contends should cause the Court, in exercising the functions of the consent authority, to refuse the application or impose certain conditions. These contentions represent contested issues between the parties and typically become the central point of focus in a hearing.

20. During the course of the first two days of the hearing, negotiations continued between the parties. These negotiations resulted in further amendments to the application. On Day Two (20 April 2018) of the Hearing, the Court determined that it was necessary for these amended plans to be notified and responses from objectors to be considered. It was necessary to adjourn the Hearing until after this had occurred. On resumption (7 June 2018), having considered the further objector submissions, the experts representing both parties gave evidence that the amended plans (leave for the use of which was granted by the Court), and associated agreed requirements by way of conditions, satisfied the respondent’s contentions.

21. Council in turn indicated on resumption of the Hearing that based on the expert evidence provided on its behalf, it was not pressing any of the original contentions, this based on the amended plans and the agreed without prejudice conditions.

22. The experts involved in the hearing should be mentioned for the record. The applicant’s experts were: Mr Andrew Darroch (planning) and Dr Richard Lamb (visual impact). The Council’s expert was: Ms Deborah Laidlaw who provided evidence on planning and visual impact.

23. Land and Environment Court proceedings are adversarial proceedings and, subject to certain caveats, the Court is generally bound to evaluate matters that are contested (Segal v Waverley Council [2005] NSWCA 310). In this instance the matters raised by objectors are considered as contested issues and will provide the focus of the rest of the judgement.

24. The submissions from the objectors might be considered as working at two levels. The first level can be thought of as the “baseline” level. Here the proposal was thought of generally as an unreasonable overdevelopment, for reasons described below. The second level of objections went to the perceived effects on individual properties.

Baseline concerns – an unreasonable overdevelopment

25. A number of the objectors spoke about the incremental additional development for which approval had been sought for the site over time. Frustrations were still felt that the former public land, used as a bowling green, had been lost for residential development at all. Residents had participated during this planning stage and felt that the current application was inconsistent with the site-specific development control plan prepared as a component of this rezoning exercise.

26. More recent concerns were in regard to previous development applications and court action which had involved considerable effort and distress. It had been thought that at the section 34 conference, agreement had been reached and compromises made on both sides. The most recent application, and its introduction of affordable housing, which allowed for an increase in floor space again, was evidenced as being particularly frustrating and distressing. The developer was seen to be making extra profits at the direct expense of the local residents. One of the objectors put it as follows:

The applicant has already extracted significant concessions from council to allow the approved DA any further concessions would be excessive and inequitable. (Tab 4, Exhibit 7).

27. The more material concerns at this baseline level included: traffic safety both within the site (especially in regard to the narrow internal driveway) and external to it (additional traffic in already busy streets), the loss of communal open space for future residents, general construction impacts (dust, sand, construction noise – with the suggested additional excavation of relevance here), micro-climate and loss of cooling breezes, general inconsistency and incompatibility with the local setting and perceived reductions in property values.

Consideration

28. I do acknowledge these baseline difficulties that neighbours have raised in their submissions. A number of these community members have been taken through, over quite a long period now (including even before the entrant of the applicant on the scene), considerable angst, uncertainty, assumed resolution, and then further uncertainly, associated with the conversion of this former community land to a (future) medium density residential precinct. The Court has a role to consider these submissions as it interprets and applies the relevant laws and planning controls in the evaluation of the application.

29. I first consider what I have termed “material” factors, in regard to traffic, quantum of communal open space, and micro-climate. These would be reasonably seen as technical issues warranting appropriate expertise or technical evidence in support. In this case the experts are satisfied in regard to traffic and open space (including consideration of the changes involved in the amended plans in regard to communal open space). There was no expert evidence raising concerns in regard to micro-climate effects, and in general I am not inclined to the view that this issue would provide just cause to refuse the application. In regard to the question of potential loss of property value, I take the common position of the Court that private economics (or loss of values on individual, e.g. next door, properties) is not within the ambit of consideration when evaluating DAs, under s 4.15(1)(b) of the EPA Act (Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373).

30. Setting aside the different individual property impacts, I perceive the primary (again “baseline”) concern of these neighbours as the applicants calling up of SEPP – ARH as a means of increasing the floor space and thus development potential of the site. It is a feeling that the rules have changed, after neighbours had thought a resolution had been reached; a resolution that, according to the evidence, a number of these residents had been “hands-on” in the reaching.

31. Indeed the planning rules have been changed so far as the site is concerned with the applicants provisioning of affordable rental housing as a component of the development, and thus calling up the opportunities arising from SEPP – ARH.

32. Affordable rental accommodation is a major challenge in Sydney. Among other things, SEPP – ARH is directly concerned with providing incentives for the provision of new affordable rental housing, and has purposively codified a system or structure to encourage this occurring. The relevant aim (cl 3(b)) is reproduced below:

The aims of this Policy are as follows:

…

(b) to facilitate the effective delivery of new affordable rental housing by providing incentives by way of expanded zoning permissibility, floor space ratio bonuses and non-discretionary development standards,

…

33. The applicant, in providing the SEPP’s required commitments in terms of affordable rental housing provision, while also meeting access requirements (uncontested by the parties), is, in proposing to increase floor space, acting in alignment with the incentive structure established by government via the instrument of SEPP – ARH.

34. It is important that the Court’s role here be understood. It is one of interpreting and applying the relevant policy and controls. A key reason for “interpretation” of legislation, in this case SEPP – ARH, is to ascertain the extent of jurisdiction and powers. It is clear under the SEPP that provided 20% of the development is to be used for (qualifying) affordable housing then, in this case, cl 13(2)(a)(ii) applies. This clause increases the maximum FSR in line with the percentage of (qualifying) affordable rental housing.

35. Here the applicants have indicated that 20% of the total floor area will be allocated as affordable. The maximum allowable under the LEP is 0.63:1. To this must be added the 20% or 0.2:1 “bonus”, under cl 13(2)(a)(ii) of the SEPP. This brings the total maximum FSR to 0.83:1. The experts indicate that the proposed development has an FSR of 0.73:1. This indicates the proposal complies with the FSR control.

Concerns about impacts on certain properties

36. A number of local residents spoke out about the impact of the proposal on their amenity, using the term here in the general sense. Submissions were heard on-site in regard to impacts on the following properties: 11 Cooper Park Road, 17A Cooper Park Road, 68-70 Bellevue Road, 66 Bellevue Road, and 5/60 Bellevue Road. There were also written submissions from some of these residents after the amended plans were renotified, along with three other neighbouring residents (see below).

37. There are a number of policies which need to be considered when assessing the impacts on these neighbouring properties. SEPP – ARH explicitly provides that the proposal still needs to be evaluated against State Environmental Planning Policy No 65—Design Quality of Residential Flat Development and therefore the Apartment Design Guide (ADG), and that there is need to consider local character compatibility (cl 16A of SEPP – ARH) In addition there are the provisions in the LEP and DCP, including the site specific provisions. I now move to the concerns raised by residents about local impacts and provide a consideration of them mindful of the criteria established through these policies.

Impact on 11 Cooper Park Road

38. Mr M Baume, the owner, and Mr H Rohde in support, spoke on the impacts of development on the residence at 11 Cooper Park Road (Mr Rohde spoke in support of a number of the other objectors also). This property would be most affected by proposed Building C. The concerns raised were in regard to the loss of sunlight along northern side of the home (bedrooms, kitchen, and outdoor areas). The northern sun has been a most enjoyable feature for these northern parts of the residence. There were also visual and acoustic privacy concerns. Evidence of the impact of development to date, especially construction noise, was provided with the indication that a subtenant who lives downstairs in the house had decided to move out after five years occupation. Mr Baume also made a written submission against the amending proposal based on similar reasons.

Consideration

39. In regard to solar access, the shadow analysis undertaken for the final amended plans (which shifted Building C to the east by 2m) show that the upper level windows of the property (on the northern side) would still receive more than 3 hours of sunlight during mid-winter. I agree with the experts that the lower level windows would likely be affected more immediately by boundary fencing during winter. I see these lower, close to the boundary, windows as difficult to protect. Sunlight access to the large upper and lower decks on the northern (and western) side of the building would not be affected. I also note that there would be an outlook from the main windows and deck (over the driveway cutting) towards the communal open space at the north-west corner of the site (rather than directly towards Building C). The view to the west from the decks on both levels is not affected. Insofar as outlook and outdoor living is concerned the residence has been designed to mostly capitalise on this western and north-western orientation from these quite large decks. Visual privacy would be generally protected as a proposed deck along the southern side of Building C has been removed from the plans. Overall I agree with the experts and am satisfied that the direct impacts of the proposal on 11 Cooper Park Road, in terms of solar access, visual and acoustic privacy have been appropriately cushioned with the currently proposed application.

Impacts at 17A Cooper Park Road

40. There is a villa complex at 17A Cooper Park Road, and at the site view prior to the Court hearing, oral submissions were made in regard to the impacts on: Unit 17 by Ms J Leung and Unit 19 by Ms K Kahanovitz. The concerns here were principally in regard to overshadowing and privacy impacts. Building B was the key concern. Ms Leung also made a submission following the notification of the amending plans indicating that she felt none of her concerns had been addressed.

Consideration

41. Council did not raise impacts on 17A in the statement of facts and contentions and the only technical evidence submitted in regard to solar access was that provided in Exhibit A (the architectural plans for which leave was granted on 14 February 2018). The solar access drawings at Exhibit A, and the applicant’s Statement of Environmental Effects (Exhibit E) indicate no significant additional shadow effect in mid-winter on these properties as a consequence of the new building on the third level of Building B. It is noteworthy that Building B is lowered 1.0m in the final plans before the Court (compared to the consideration in Exhibit E), which would further reduce shadow effect.

42. In regard to privacy it is noted that the new building on the third level of Building B would be offset some 10.885m from the property boundary near Units 17 and 19 at 17A Cooper Park Road, compliant with the ADG. In addition, the draft conditions include requirements to restrict the potential for direct line of sight from Building B’s proposed upper level unit to the east (i.e. towards Units 17 and 19). The ADG’s visual privacy interest is in allowing residents to reasonably use their private spaces without being overlooked. In this instance, the proposal is seen to meet reasonable visual privacy requirements.

43. I concur with the evidence presented to the Court by the experts that the impacts of Building B of the residents of Units 17 and 19 at 17A Cooper Park Road are not unreasonable.

Impacts on 68-70 and 66 Bellevue Road

44. The building at 68-70 Bellevue Road is a large multi-level dwelling with tennis court and swimming pool at the lower levels (closest to the shared boundary with the subject site). According to Mr R Schaffer and Ms M Schaffer, the most direct impacts on this property would be from proposed Building C. There were concerns that residents of Building C would look out to the pool, tennis court (where children and their friends play) and an outside dining area, substantially affecting amenity. Building C was also seen to likely obstruct views from this property towards Cooper Park and the community garden. Concern was expressed about building finishes and the potential reduction in property value. Dissatisfaction was also formally expressed in written submissions in regard to the amending plans.

45. A large residence, with lower level swimming pool also occupies 66 Bellevue Road. Similar to the above, the outdoor amenity available at 66 Bellevue Road from its high position as it views to the south is much valued by Ms Condoleon who spoke during the sight view. The key concern raised was with regard to visual and acoustic privacy which were expected to affect the enjoyment of these outdoor spaces significantly. A further concern was in regard to effects on views to Cooper Park and Bondi Junction skyline. Mr and Ms Condoleon also wrote a submission objecting to the amended proposal for similar reasons.

Consideration

46. The key cushioning elements which have been incorporated into the proposal in regard to potential visual privacy impacts on 66 and 68-70 Bellevue Rd are the detailing of fencing (solid 1.8m high along the common boundary), the intended landscaping (screening along the boundary and provision of four endemic species (“able to attain a height of 6 metres”)) and physically preventing a direct view to the north from the upper level north facing windows of Building C (privacy screens or “obscure glazed”).

47. The described result seems to be to effect a situation where there was little or no capacity for the new occupants to view into 66 and 68-70 Bellevue Rd from Building C. The experts conclude that there would be no material privacy impacts to the Bellevue Rd properties to the north of the site. I believe that significant efforts have been made to mitigate the potential for people to view into these two properties. I am also satisfied that no unreasonable acoustic impacts to living areas could be expected given the distance attenuation available as a consequence of the tennis court and pools set as they are closer to the development site boundary.

48. In regard to view loss from these properties, I note that there remain very attractive and pleasing views able from the upper levels of the properties which will not be affected by Building C or Building B’s additional dwelling unit. Mindful of the principles of Tenacity Consulting v Warringah [2004] NSWLEC 140 (considered more fully below), the proposal cannot be seen as bringing unreasonable view loss effects on these properties.

49. The overall result is reasonable, in terms of impacts on 66 and 68-70 Bellevue Rd, given the permissibility of the additional floor space and mindful of applicable policy provisions.

Impacts on 5/60 Bellevue Road

50. Unit 5 is at the lowest level of a block of units at 60 Bellevue Rd (henceforth referenced as 5/60). It is also located nearest to the development site boundary as the unit block tiers down to the south-west from Bellevue Road. Mr M d’Apice in particular, but supported by Ms B d’Apice (both of 5/60), made oral and written submissions objecting to the proposal. The principal concern was view loss and the principal issue was the additional level and apartment unit proposed for Building B. Mr d’Apice indicated he had been involved in the prior conciliation and agreement for development of the site which limited Building B to two storeys. He saw this prior negotiation exercise as a “view sharing” process, and was particularly troubled to see, now, a further attempt to add an additional level to Building B, beyond what he saw as the previously agreed view sharing (evidenced by the agreement) which had already brought view losses to 5/60. In support of his arguments that the third storey unit on Building B should not be approved, Mr d’Apice referenced in particular Tenacity Consulting v Warringah [2004] NSWLEC 140 (‘Tenacity’) in regard to view loss, and Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 (‘Stockland’) in regard to the weight which should be ascribed to DCPs. In connection with this he also made reference to the site specific controls at Chapter G4 of the DCP.

Consideration

51. The extent of view loss from 5/60 was the point of most attention in the hearing and there is no doubt that Building C’s additional level would significantly affect views from this residence. During the site view I observed that 5/60 enjoys daytime views towards the central grouping of buildings in Bondi Junction. No doubt the night-time lighting of the towers would also provide a lively and interesting feature of an evening. The other towers either side of the Bondi Junction centre are also visible. The greenery from the Cooper Park tree canopy and the surrounding suburbs provides pleasing mid-ground views.

52. The experts’ generally agreed on the quantitative aspects of the view loss which would come about as a consequence of the proposal, and demonstrated this with photo-montages. With the third level on Building B, only the top of this central grouping of buildings in Bondi Junction would be visible. It is noteworthy, here, that the proposal includes a modification to the currently approved development which was seen by the experts to be significant. The current proposal would lower “approved” Building B by 1 metre. The implications of this are summarised as follows by the experts:

The impact of the approved first floor parapet is reduced. This has the benefit of reinstating the full height of CBD buildings as well as their interface with the distant tree canopy to each side of the Building B addition. Whereas, under the original, 5/60 would in effect see no ‘greenery’ at all in the view modelled, the amendment would enable the softening effect of distant canopy within the view available from this apartment and a more complete view corridor between the proposed addition to Building B and Building A (as well as apartments above in no. 60).

53. The point being observed here is that the first two levels of Building B are both much closer to 5/60 and wider than the proposed top level element (for levels 1 and 2, Building B is offset 3.03m from the property boundary to 60 Bellevue Rd, whereas the top level unit would be offset 20.0m; the top level massing of Building B would be 7.99m wide, with approved levels nearly twice as wide). The experts believe the dropping of the massing of the approved levels of Building B (quite close to 5/60) provides a significant offset to the view loss experienced as a consequence of the more distant and narrower new level. The experts conclude in regard to the amendments adopted during the course of the hearing that (Exhibit 5):

(Under) the amendments and compared to the ‘approved’ scheme:

The addition to Building B would fragment the overall CBD view available to 5/60; however;

The view available to each side of the addition is improved relative to the approved impact of the first floor of Building B; in effect two separate smaller CBD views but each more ‘complete’ in the sense one sees not simply buildings, but buildings rising from a landscaped setting.

54. The experts have undertaken an analysis of the view impact using the Tenacity (which was also referenced in Part G4 of the DCP). In regard to the fourth step of Tenacity, Mr Darroch and Dr Lamb believe the view loss experienced from 5/60 is “moderate”. Ms Laidlaw believes the impact would be “moderate to severe”.

55. Applying Tenacity’s four principles to 5/60 Bellevue Road, I would classify the views available to the Bondi Junction skyline and foreground greenery as highly valuable. This view is available from the key living and entertaining areas of the home from standing as well as sitting positions, although it is noteworthy that the approved Building B would decrease the mid-ground greenery views. The proposal would block the continuity of the existing highly valuable view. The view that would remain would be pleasing but not in any sense as valuable. In my opinion, the impact would be moderate to severe.

56. Tenacity’s fourth step is to assess the reasonableness of the proposal that is causing the impact. This raises the applicable planning controls and to what extent skilful design has been employed.

57. I note that the proposal does not breach any of the applicable development standards (height or FSR pertinent to the LEP and SEPP). In terms of the third storey to Building C, I note that its setback from the property boundary near 5/60 is considerably greater than the 6m required under the ADG. I note here that the lower two levels of Building C are not matters for consideration as they form part of any existing approval.

58. Turning to the particulars of the site specific DCP, I observe the pertinent objectives is G4.1.3 - O2:

To guide the design and location of development to address the amenity of adjoining properties.

59. Item G4.2 is then concerned with the design and siting of development. Objective O1 is as follows:

To ensure that the siting of development does not unreasonably impact on the amenity of adjoining properties.

60. The applicable “controls” for Objective O1 are then itemised. There are no numerical controls listed. A concern is to “minimise privacy and overshadowing impacts” (control C1(a)). I am satisfied from the evidence that the additional level to Building B would not raise concerns in regard to these issues.

61. More pertinent to this DA is Objective O2:

To ensure that development is designed to reflect view sharing principles.

62. The “controls” are reproduced in part below:

Having regard to views over the site from adjoining properties in Bellevue Road, the building design demonstrates that view sharing has been addressed. This should be through thoughtful distribution of built form across the site and well-considered building design and landscaping, addressing matters such as, but not limited to:

a) reduced development intensity, such as a single storey building height, on parts of the north-eastern end of the site;

b) increased setbacks along the boundary adjoining No.60 Bellevue Road;

c) building modulation including separation of buildings or their components;

d) articulated roof forms;

e) suitable location of vegetation, particularly in regard to the height and width of species;

f) location of aerials and telecommunication devices;

g) location of photovoltaic panels; and

h) any other architectural and design solutions.

63. In consideration of the submissions from Mr and Ms d’Apice and the experts, I come to the conclusion that the proposal is generally aligned with these controls, insofar as its effects on view loss from 5/60. What I see with the proposal is: a development with reduced intensity near the north-eastern boundary (the current DA does not propose development in this “north-eastern end of the site” other than to reduce the height of approved development by 1.0m), an increased setback near 60 Bellevue Rd, building separation (and building width, in regard to the proposed unit on level 3 of Building B) which allows for view lines between buildings. The flat roof is a suitable device to minimise view loss. The lift over run, air conditioning and solar PV cells are all controlled and aligned in the roof plan to minimise view loss impact (Exhibit G and proposed changes to conditions recommended in expert’s final joint report). Landscaping has already been controlled (in DA607/2015) to limits its height again to protect view loss.

64. One of the findings in Tenacity [29] was referenced by Mr d’Apice:

… development that complies with all planning controls would be considered more reasonable than one that breaches them.

65. Mr d’Apice also referenced Stockland with a view to its findings in regard to the weight to be given to DCPs when assessing development applications. I have had a mind to these authorities. However I don’t see that the proposal before the Court has any notable breaches of the DCP which applies.

66. So the setting is one where a permissible development is having a moderate to severe impact on the view loss from 5/60. This would affect the amenity of 5/60. The question, having regard to the Tenacity principles, then goes to whether the impact is “unreasonable”. I note that the proposal is generally compliant with the relevant planning controls. I also agree with the experts that the proposal goes as far as it might in regard to “skilful design” with its lowering of building height, along with building arrangements (align of buildings, and the width and setback of the offending aspect of the development as far as 5/60 is concerned). I acknowledge the comment from Ms Laidlaw that were the development to be non-compliant on FSR then a different conclusion might arise. However, SEPP – ARH has legitimately and purposefully effected change to FSR pertinent to this case. My finding is that the proposal’s impact on 5/60 is not unreasonable, given the applicable policy settings.

Other residential impacts

67. Three residents who had otherwise not provided evidence to the Court provided written submissions after the exhibition of amended plans. The experts indicated they reviewed these submissions and did not vary from their conclusions as a consequence of this. These submissions have also been reviewed by me (mindful of Exhibit 5 paragraphs 2.6-2.7) and my finding is that no issues are raised which affect the conclusions I come to below.

Conclusions

68. The position before this hearing is that as a consequence of late amendments to the proposal and agreed conditions to be imposed on any development consent, Council’s planning expert has come to the conclusion that the amended proposal warrants approval. Other contentions raised initially by Council have also been addressed to its satisfaction.

69. I have considered this evidence along with the evidence of the applicant’s experts. I have also considered the submissions and evidence provided by a number of neighbours who have a serious sense of dissatisfaction with the processes which have been followed in the lead-up to the proposal and in particular feel would experience significant adverse effects as a consequence of the proposal.

70. In accordance with cl 16A of SEPP – ARH there is a need to “(take) into consideration whether the design of the development is compatible with the character of the local area”. The Court has a planning principle in regard to compatibility which I have considered (see Project Venture Developments v Pittwater Council [2005] NSWLEC 191). Directly mindful of Project Venture, based on the analysis above I am satisfied that the proposal’s physical (amenity) impacts are not unreasonable. It is also clear to me that its location (setback from both Cooper Park Road and Bellevue Road) means it would not unreasonably impact on local streetscape character. The term compatibility is often linked to the notion of “existing together in harmony” (Project Venture [22]). At the same time I wish to acknowledge that a number of the neighbours would not be likely to today feel they, and this development, can in fact co-exist in harmony. This is, to me, principally as a consequence of the additions to the proposal (embodied in this application) which have occurred since agreement was reached at the earlier conciliation process referred to above.

71. Having regard to the planning provisions applying to the proposal and, in regard to view loss, mindful of the Court’s own planning principle (Tenacity), I accept the agreement of the planning experts, and the Council’s submission that it is satisfied with the development application, as amended. I am satisfied that, with the design changes incorporated in the plans now before the Court, consent can be granted to the application in accordance with the agreed conditions.

Orders

72. The orders of the Court are:

1. The appeal is upheld.

2. Development application DA169/2017/1 for alterations and additions to an approved residential flat building development at 9A Cooper Park Road, Bellevue Hill, is approved subject to the conditions of consent at Annexure A.

3. The Court notes: the parties agree to the amount of $4,000 in relation to the Council's costs thrown away, with those costs to be paid to the Council within 28 days of the date of these orders.

4. The exhibits, other than Exhibits 2, E and G, are returned.

____________

P Walsh

Commissioner of the Court

Annexure A (452 KB, pdf)

Decision last updated: 11 July 2018