Parker Logan Property Pty Ltd v Woollahra Municipal Council

[2018] NSWLEC 1013

Land and Environment Court

New South Wales

Medium Neutral Citation:	Parker Logan Property Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 1013
Hearing dates:	16 November 2017, submissions 11 December 207
Date of orders:	16 January 2018
Decision date:	16 January 2018
Jurisdiction:	Class 1
Before:	Dickson C
Decision:	The orders of the Court are: (1) The requested variation to the maximum height standard pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 is not sustained; (2) The appeal is dismissed; (3) Development application DA 2016/590/1 for the addition of a penthouse (level 6) to the existing approval at 240-246 New South Head Road is refused. (4) The exhibits are returned with the exception of exhibits 1, A and B.
Catchwords:	DEVELOPMENT APPEAL: New penthouse level to existing consent – requested variation to maximum height limit – site specific controls – whether the exceedance of height has unreasonable impacts on views from adjoining properties.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Tenacity Consulting v Warringah [2004] NSWLEC 140 Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237 BGP Properties Pty Ltd v Macquarie City Council [2004] NSWLEC 399 Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52
Texts Cited:	Woollahra Local Environmental Plan 2014 Woollahra Development Control Plan 2015
Category:	Principal judgment
Parties:	Parker Logan Pty Ltd (Applicant) Woollahra Municipal Council (Respondent)
Representation:	Solicitors: Ms J Hewitt, HWL Ebsworth (Respondent) Mr A Boskovitz, Boskovitz & Associates Solicitors (Applicant)
File Number(s):	2017/00093952
Publication restriction:	No

Judgment

1. COMMISSIONER: This appeal has been lodged in response to the refusal of consent by Woollahra Municipal Council for the addition of a penthouse apartment to the roof of an approved residential flat building. The existing approval for the subject site has an overall building height of five storeys; the additional apartment would create a six storey building. The development is proposed at 240-246 New South Head Road, Edgecliff.

2. Following the termination of the conciliation conference the applicant made amendments to the proposed development to reduce its foot print and locate the proposed penthouse apartment further to the east of the site. The applicant was granted leave to rely on these amended plans and associated documents on 18 August 2017.

3. Despite the applicant’s amended proposal Council maintains the application should be refused on the following grounds:

1. The height of the proposal exceeds the maximum height allowable for the site under the relevant planning instrument. In exceeding the height the applicant has failed to demonstrate that the variation meets the objectives of the height control and the relevant land use zone;

2. The proposed penthouse will have an unacceptable impact on the private views from properties at 458 Edgecliff Road and 287-289 New South Head Road, Edgecliff; and

3. The public interest.

The site and its context

4. The site is described as Lot 240 DP 1220216 and known as 240 New South Head Road. It is an irregular shaped allotment; the front boundary follows the curve of the main road. The site has a total area of 381.9m² and slopes some four metres along the New South Head Road frontage from the west (approximately RL 35) to the east (approximately RL 31).

5. Currently the site is undergoing construction of the existing approved development.

6. The subject site is predominately surrounded by residential flat buildings and commercial buildings of varied form, height, scale and age.

7. The site is located in close proximity to the Edgecliff Centre and the rail interchange.

Background

8. The existing approved development is a five storey residential flat building with basement parking (DA/22/2015/3). The approval incorporates the following condition:

C 1.A The height of the building (including lift overrun) is to be limited to a maximum RL 49.0 (as approved). The lift overrun is to be the lowest possible height above RL 49 and is not to exceed RL 50.1.

9. In 2014 prior to the existing approval new planning controls for the subject site were gazetted. The amendment increased the overall maximum building height to 18 metres, with a secondary building height of 14m.

10. Council argues that this variable building height was a response to the view impact analysis undertaken at that time and sought to maintain views across the site to the bay.

Public submissions

11. During the onsite view the Court was addressed by a number of members of the public. Their concerns with the development application can be summarised as follows:

• the development’s lack of compliance with the site specific controls that apply to the subject site;

• the applicant seeks an inequitable outcome which will reduce amenity of neighbouring properties in exchange for additional development yield on the subject site;

• the residents acknowledge the reduced impact arising from the amended proposal;

• the precedent impact of any approval;

• view loss for the units at 458 Edgecliff Road, particularly from living rooms, kitchens and bedrooms. Concern that this view loss arises from a noncompliance and is in addition to that already experienced from the current approval that is under construction.

• impact of the loss of view from the approved (yet to be constructed) units balconies at 458 Edgecliff Road;

• impact on property values from the loss of views that would arise from approval of the additional height;

• concern in regards to the accuracy of the view analysis completed by the applicant. In particular how the current view analysis contrasts with the view analysis that was completed to support previous planning applications on the subject site. The resident’s argue that the current view analysis downplays the view loss that will be experienced by units at 458 Edgecliff Road;

• unacceptable privacy impacts on Unit 11/230-238 New South Head Road, Edgecliff from the proposed penthouse apartment;

• the impact of the additional floor on the subject site on the future development potential of 287-289 Edgecliff Road and views that a future development may enjoy; and

• the proposal is an overdevelopment of the site and is not compatible with existing and future desired character for Double Bay.

Planning Controls:

12. The site is zoned R3 Medium Density Residential under the Woollahra Local Environmental Plan 2014 (“LEP 2014”). Clause 2.3(2) of the WLEP 2014 requires the Court to "have regard to the objectives for development in a zone when determining a development application in respect of land within the zone". The zone objectives are:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

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

The proposed development is permissible with consent in the zone.

13. Under cl. 4.3 of LEP 2014 the site has a maximum building height of 18m. The objectives of Clause 4.3: Height of Buildings are:

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

(a)  to establish building heights that are consistent with the desired future character of the neighbourhood,

(b)  to establish a transition in scale between zones to protect local amenity,

(c)  to minimise the loss of solar access to existing buildings and open space,

(d)  to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion,

(e)  to protect the amenity of the public domain by providing public views of the harbour and surrounding areas.

14. The site is subject to a secondary height limit pursuant to cl. 4.3A of LEP 2014. It states:

4.3A Exceptions to building heights (Areas A–H)

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

(a) to ensure new development is consistent with the desired future character of the neighbourhood,

(b) to ensure new development is consistent with the surrounding buildings and the streetscape,

(c) to protect views and vistas that are in the public domain.

(2) This clause applies to land identified as “Area A”, “Area B”, “Area C”, “Area D”, “Area E”, “Area F”, “Area G” and “Area H” on the Height of Buildings Map.

(3) Despite clause 4.3, the height of a building on land to which this clause applies, in an Area indicated in Column 1 of the table to this clause, at the highest part of the land (exclusive of any access handles), must not exceed the height shown opposite that Area in column 2.

Column 1                  Column 2

…

Area H  14 metres

15. Relevantly the site is within area “H” (Exhibit 4). As a result the site specific control is 18m and then 14m at the highest point of the existing site (being its western boundary at the street frontage).

Extract from the Height of Building Map identifying the subject site and area “H”

Source: start="16">

The planning experts agree that the proposed development exceeds the maximum building height. The proposal seeks an exceedance of the 18m height limit by 3.27m and the 14m height limit by 4.22m.

The applicant relies on a clause 4.6 variation request to establish that the variation sought is acceptable and warrants support. Whether the Court accepts the applicant’s clause 4.6 variation request in relation to the variation of the maximum height of the development is a jurisdictional precondition to consent.

It is agreed between the parties that the site complies with the maximum floor space ratio and no contentions are raised in respect of the development compliance with the objectives of cl. 4.4 of LEP 2014.

The Woollahra Development Control Plan 2015 (“DCP 2015”) applies. Part B of DCP 2015 contains precinct controls for 10 residential precincts. The stated intent of these controls is to ensure that development has regard to its context and is compatible with the desired future character for each precinct described in this chapter (Exhibit 4).

The objectives of Part B (cl. B1.1.3) are:

01   To ensure development reflects the desired future character of the precinct.

02   To preserve the significant features of individual precincts which contribute to their unique character.

03    To ensure that the design and siting of development suitably responds to the surrounding built form and natural features

04   To limit impacts on the amenity of adjoining and adjacent development

05   To ensure the preservation of significant view corridors and ridgelines

06   To retain and reinforce tree canopies and landscape qualities

07    To ensure that streetscape and scenic quality is preserved.

21. The site is located within the Double Bay precinct. At B1.3.2 of DCP 2015 the desired future character of the precinct is described as follows:

The precinct is an established area comprising many residential flat buildings. Development will generally be in the form of improvements to the existing residential flat buildings.

There are a significant number of Inter-War flat buildings that contribute to the precinct character and are worthy of retention, especially around William Street, New South Head Road and Gladswood Gardens. Alternations and additions to the Inter-War flat buildings are to retain the character of the original building through appropriate use of materials, and should not significantly alter significant and traditional building elements visible from the street.

…

On sloping land, new development should step down the site to reinforce the topography and minimise cut and fill. Attention must also be given to protecting views, particularly views from public spaces down Ocean Avenue, Bay and Beach Streets to the harbour, and views from New South Head Road to the Harbour.

22. Relevant to these proceedings the stated objective in clause O3 of B3.5.3 of WDCP 2015 is to “encourage view sharing as a means of ensuring equitable access to views from private property” and requires that:

C5 Development is sited and designed to enable a sharing of views with surrounding private properties, particularly from the habitable rooms (refer to Figures 17 and 18).

C6 Development steps down the hillside on a sloping site.

C7 The design of the roof form provides for view sharing.

C8 Roof terraces are uncovered to provide for view sharing. All elements on roof terraces are to comply with the maximum building height control.

The Issue

23. The fundamental issue for determination in this appeal is whether the variation to the height standard sought by the proposed development is well founded and worthy of support given its impacts on views from nearby properties.

Evidence

24. In line with the issues in dispute in the proceedings the parties engaged experts in town planning. Mr Dimitri Lukas was engaged to provide evidence by the respondent and Mr Eli Gescheit by the applicant.

25. It is clear from a reading of cl. 4.6 of LEP 2014 that the onus is on the applicant to meet the tests of cl 4.6 in seeking flexibility to the height or FSR standards by demonstrating that the breaches of the development standards are justified. In this matter the applicant relies on two variation requests for floor space and for height.

26. In Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 Preston CJ outlines that Commissioners, in exercising the functions of the consent authority on appeal, have the power to grant consent to developments that contravene the building height standard, or the FSR standard (cl 4.6(2)). However they cannot grant such a development consent unless they:

1. Are satisfied that the proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)).

2. Are satisfied that the proposed development will be consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii)).

3. Have considered a written request that demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and with they are satisfied that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(a) and cl 4.6(4)(a)(i)).

4. Have considered a written request that demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard and with the Court finding that the matters required to be demonstrated have been adequately addressed (cl 4.6(3)(b) and cl 4.6(4)(a)(i)).

27. I have applied these tests to the current application in the following.

Variation to Maximum Building Height

Consistency with the zone objectives:

28. The site is within the R3 Medium Density zone, the objectives of which are provided at paragraph [12].

29. The planning experts disagree whether the proposal meets the zone objectives; in particular the requirement to ensure that development is of a height and scale that achieves the desired future character of the neighbourhood.

30. In relation to the desired future character of the Double Bay Precinct it is the evidence of Mr Gescheit that the development can appropriately achieve the relevant objectives, in relation to enhancing the streetscape character (O1), the design is responsive to the steep topography (O3), the addition is compatible with the approved contemporary building (O4). The proposal also -bears no impacts to the opposite heritage listed commercial building at 287 -295 New South Head Road (O6) and no views are impacted from the public domain (O10) (Exhibit 2).

31. Further the applicant’s variation request argues that due to the sites frontage to New South Head Road its character is largely associated with the Edgecliff commercial centre and corridor. It is Mr Gescheit’s evidence that the subject site is located at the identified gateway to the Edgecliff commercial centre (Exhibit 2). He argues that the desired future character of the New South Head Corridor (under Part D2.2.2 DCP 2014) is therefore relevant to the consideration of the proposal’s consistency with this objective of the height standard.

32. The desired future character statement for this adjoining precinct (Edgecliff commercial centre and corridor) states:

Development fronting New South Head Road will generally contain four to six storey mixed use buildings.

33. It is Mr Gescheit’s evidence that the proposed 5-6 storey building is consistent with the above desired future character statement and the existing heights of surrounding buildings. In his oral evidence he also identified that the Council has issued a number of approvals that have exceeded the maximum height and floor space controls which will influence the future character in proximity to the site. In addition he relies on the neighbouring 7 storey building at 230 New South Head Road to conclude that the proposed development is consistent with the desired future character documented in the relevant planning controls.

34. In contrast Mr Lukas argues the proposed development is not of a height and scale that achieves the desired future character as detailed in DCP 2014. It is his evidence that:

1. The proposed additional level does not provide an appropriate transition from the higher density buildings found at the crest of the hill to the lower density buildings downhill from the site that have a lower height limit.

2. The approved development on the site has reached its development potential based on the envelope controls established by the recent planning proposal (Exhibit 2).

35. Mr Lukas argues that in the development of the new planning controls for the site the Council had regard to the desired future character of the area and the existing streetscape character. It is his evidence that following an analysis of these factors the Council established the height limit and building envelope controls and they should be maintained.

36. Mr Lukas maintains that whilst there are buildings in the immediate context of the site that are of greater height than that sought by the application the location of the subject site at the crest of the hill makes any exceedance more prominent. It is his assessment that with the proposed additional storey the building fails to transition to the adjoining lower height buildings.

37. In oral evidence Mr Lukas accepted that the subject site is at the boundary of the two precincts: Double Bay and New South Head Road and that the desired future character objectives of the two precincts are similar.

38. Mr Lukas concludes on his assessment that the addition of the penthouse level is inconsistent with achieving the objectives of the R3 Medium Density Residential zone.

Submissions

39. It is Ms Hewitt’s submission that the relevant objective of the R3 zone: ensure that development is of a height and scale that achieves the desired future character of the neighbourhood (refer paragraph [12]), is concerned with ensuring that development has contextual fit with the development that will follow from the application of Council’s controls. She argues that in articulating the desired future character, there is a consideration not only of the need to achieve consistency with the scale of buildings, but to balance this with an appreciation of the topography of the area and how this relates to view sharing (Respondents submissions, p. 18). She argues that the site specific planning controls provide this balance and that the 18m and secondary 14m height limit were imposed for the purpose of allowing greater density whilst protecting a proportion of the views of properties to the south of the site.

40. Ms Hewitt argues that the building envelope approved by DA/22/2015 (refer paragraph [8]) already results in view impacts for 458 Edgecliff Road and 287-289 New South Head Road. It is her submission that view sharing as intended by the Tenacity principles has already occurred in the first development consent for the site. Further she argues that it is not acceptable for the applicant to take the view that the amended scheme currently before the Court provides an improved view corridor as referred to by Mr Gescheit (page 5 of the joint report) as it is effectively taking more of the view away. That is the Court should consider the approved building envelope and the current DA and the impact on views rather than a comparison with a scheme [the refused application] that is no longer before the Court (Respondents submissions, p. 8).

39. In response to the evidence of Mr Gescheit, Ms Hewitt submits that it is insufficient justification for the variation to argue that the proposed development falls within the 4-6 storey height limit for the neighbouring precinct - the New South Head Road corridor. She concludes that the applicant has failed to demonstrate that the proposal is consistent with the objectives of the R3 Medium Density Residential zone.

40. In contrast Mr Boskovitz places emphasis on the use of the term neighbourhood in the relevant objective of the R3 zone. It is his submission that:

The clause we are dealing with seeks for the development to be consistent with the desired future character of the ‘neighbourhood’. On the basis of the transition between precincts and the nature of building form in the area, we submit that all of these precincts create the ‘neighbourhood’ and on this basis of the assessment of the height compared with the built form in the ‘neighbourhood’ should be conducted.

(Applicants submissions, p. 5).

43. Mr Boskovitz relies on the existing height of development within proximity of the site as detailed at Figure 4 in the variation request (Exhibit 2).He argues that the proposed building has been designed in a way that transitions between the diversity of the existing building heights and the desired future character of the proximate precincts. He submits that the proposal is consistent with the objectives of the R3 Medium Density Residential zone.

Findings

44. The contested objective of the R3 Medium Density Residential zone requires that development is of a height and scale that achieves the desired future character of the neighbourhood.

45. On the basis of the site view and the evidence I accept the submission of Mr Boskovitz (refer paragraph [42]) that the use of the term neighbourhood in the objective and the location of the site at the boundary of the Double Bay precinct are relevant considerations in the assessment of whether the proposed development is consistent with the zone objectives.

46. It is appropriate to take a practical approach to consideration of the proposed development and the existing and likely development that will arise in response to the planning controls in proximity to the site. I am satisfied that ti undertake this analysis it is appropriate to consider the desired future character statements of both the Double Bay precinct and the adjoining precincts within DCP 2015 (cl. B1.3.2).

47. In forming this determination I have given consideration to the height of buildings map in LEP 2014 [paragraph 15] and the likely limited visibility of the additional floor from the streetscape or the road approaches in proximity of the site. Given the side setbacks proposed by the applicant and the angle of view generated by the height of the structure I am satisfied that the proposed development is sympathetic to desired future character of this section of New South Head Road.

48. Applying the principles in Addenbrooke Pty Ltd v Woollahra Municipal Council [2008] NSWLEC 190 at [45], consistency with the zone objectives requires the development to be compatible with them. For the proceeding reasons I am satisfied that the addition of a penthouse at the sixth level of the building is compatible with the desired future character of the neighbourhood.

49. I note that the desired future character statement for Double Bay emphasises that weight must also be given to protecting views, particularly views from public spaces down Ocean Avenue, Bay and Beach Streets to the harbour, and views from New South Head Road to the Harbour. I accept the evidence of the planners that the proposed development will have no impact on public views.

50. Pursuant to cl. 4.6(4)(a)(ii) I find that the proposed development is compatible with the zone objectives.

Consistency with the objectives of the standard in question:

51. At [13], I listed the objectives of cl 4.3: Building Height and that in the circumstances of this case, objectives (a) (b) and (d) are the most relevant.

52. The objectives to the exceptions to building heights (cl. 4.3A) relevantly address the consistency of the development with the desired future character of the neighbourhood (cl. 4.3A(a)) and consistency with the surrounding buildings and the streetscape(cl. 4.3A(b)).

53. I note that there is no contention in these proceedings the development will have a detrimental impact on views and vistas that are in the public domain (cl. 4.3A(c)).

54. The Council’s principal contention is that the development is inconsistent with the objective (d) of the building height control, namely: to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion on the basis of the view loss arising from the proposed development.

55. The applicant’s variation request argues that the design of the proposal limits the extent of any view loss from residential units within 458 Edgecliff Road and the commercial building at 287-289 New South Head Road, Edgecliff. Mr Gescheit concludes:

The amended design shows the additional unit setback away from the western building and sited towards the centre of the roof. This allows for a view corridor on the western side of the additional unit, rather than block out a portion of Sydney Harbour views. Despite the proposal now seeking a larger variation to the height maximum, it remains compliant with FSR. The height variation is considered as a reasonable balance in order to retain a view corridor for the north facing units at 458 Edgecliff Road, Edgecliff.

(Exhibit 2)

56. Mr Gescheit’s view impact assessment applies the planning principles espoused in Tenacity Consulting v Warringah Council [2004] NSWLEC 140 and assesses unit 6, 8, 10, 12 and 20 within 458 Edgecliff Road as well as the commercial building at 287-289 New South Head Road, Edgecliff. He concludes that the additional level of development sought by the applicant represents an equitable distribution of view sharing opportunities between the subject site and these affected properties.

57. Mr Gescheit’s view assessment was appended to the joint report of the planning experts. I have read and considered that report.

58. Within the joint report the planning experts agree that the views obtained from 287-289 New South Head Road, Edgecliff are not as significantly affected as those enjoyed by the residential units at 458 Edgecliff Road. They also agree that within 458 Edgecliff Road units 6 and 8 are the most impacted by the proposal.

59. In summary Mr Gescheit assessment is that the views of the bay affected by the proposed development are acceptable as they are:

1. not viewed directly from the windows of the relevant apartments, but rather at an angle making them less discernible from the interiors of the apartments;

2. partially obscured by both vegetation and intermediate structures;

3. not categorised as iconic; and

4. assessed as minor or Unit 6, 8, 10 and 12 and negligible for Unit 20.

60. Further Mr Gescheit’s concludes that the view impact is reasonable due to the siting of the additional unit to provide a view corridor on both sides. Remaining distant views of the headlands can be protected, while views in foreground towards Double Bay are already obstructed by the approved building (Exhibit 2).

61. In contrast it is the evidence of Mr Lukas that the planning controls for the site, in particular the height, were established following an extensive investigation of view impacts from both public and private property. It is his evidence that the height controls for the site were developed to ensure a view corridor to the harbour from both the public and private.

62. It is Mr Lukas’ assessment that the proposed development unreasonably impacts on this view corridor from the residential units at 458 Edgecliff Road. His reasoning is as follows:

1. The views impacted are iconic as they contain views of Sydney Harbour (Tenacity Consulting v Warringah [2004] NSWLEC 140 at paragraph [26];

2. the loss of view for Unit 6 and 8 is moderate as the proposed development impacts approximately 50% of the view;

3. the loss of view from Unit 11 is considered to be minor;

4. the loss of iconic views is not minimised from the development as the whole development proposed exceeds the maximum height limit established for the site; and

5. Given the view impact arises from a non-compliance it is unreasonable.

63. Mr Lukas and the Council rely on a view assessment prepared by GSA Planning (the GSA report). This report was prepared to support a 2014 amendment to the maximum height limit applicable to the subject site (refer paragraph [9]). This view assessment was undertaken with the following methodology:

The process for the view analysis has involved erecting height poles, certifying the height of the poles, taking photographs from dwellings within the buildings as noted by the Council, superimposing a building mass onto the photos and assessing them against the four view sharing Planning Principles of Tenacity Consulting v Warringah [2004] NSWLEC 140.

(Exhibit 5)

64. The GSA report is tendered in the proceedings as Exhibit 5.

65. Within the GSA report the properties identified by Council for view assessment against the proposed 18 metre height limit included the units 4, 6, 10 and 20 at 458 Edgecliff Road.

66. Based on a proposed 18 metre height limit the GSA report concludes that on balance the view impact on No. 458 Edgecliff Road can be described as minor to moderate on the basis that three of the four units inspected [units 4, 6, 10 and 20] will retain their views. The view loss from Unit 4 is from a bedroom, which is more difficult to retain under Tenacity (Exhibit 5).

67. Mr Lukas notes that even with this conclusion with the GSA report the Councul amended the height limit for the subject site to be 14m at the high point (refer paragraph [15]).

68. It is Mr Lukas’ evidence that significant weight should be given to the existing controls. He argues that during the consideration of the site specific planning proposal the height limits were assessed by Council as providing a reasonable sharing of views between the relevant properties. The proposed penthouse exceeds these controls. It is Mr Lukas’ opinion the exceedance generates an unreasonable impact on views with the trade-off of additional development potential for the subject site.

69. Both experts have also undertaken a view assessment of the impacts from the proposed development on the commercial building at 287-289 New South Head Road.

70. The experts agree that these views are not as significantly affected as those enjoyed by the residential units at 458 Edgecliff Road (Exhibit 2). In the joint expert report Mr Lukas notes that this commercial building also enjoys a view to Sydney CBD from the west facing windows. It is Mr Lukas’ assessment that the loss of the iconic views of the harbour that arises from the proposed development for this property is classified as minor (Exhibit 2). Given that the impact arises from a noncompliance Mr Lukas concludes the impact is unreasonable.

71. Mr Gescheit’s evidence is that the location of the penthouse within the proposed additional level reduces the impact of the view loss and he assesses it as minor. In relation to the impacts from the roof terrace within 287-289 New South Head Road it is his assessment that the existing approved development already obstructs views from this location and consequently the additional unit does not add to the view impacts (Exhibit 2).

72. Both planning experts agree that the view impact from the proposed development for 230-238 New South Head Road is minor.

73. In light of his assessment of the impacts of the proposed variation to the maximum height standard Mr Gescheit concludes that the proposed development achieves the objectives of the building height control and warrants approval.

74. Mr Lukas concludes that the development is inconsistent with objective (d) of the building height control, namely: to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion on the basis of the view loss that arises from the proposed development. He argues that on this basis the clause 4.6 variation request should not be upheld and the development refused.

Submissions

75. Mr Boskivitz argues that the proposed development, as amended, provides a corridor for views from properties to the south of approximately 12-14 metres. He notes that this view corridor is created between the proposed penthouse and the development adjoining the western boundary. In addition he argues that the setback of the penthouse unit from the eastern boundary also provides a greater than 11 metre view corridor adjacent this boundary.

76. Mr Boskovitz also submits that Tenacity at (refer paragraph [26]) describes examples of iconic views and that the views available from relevant units in 458 Edgecliff Road are not of this category.

77. Mr Boskovitz’s submits that the views impacted by the proposed development from 458 Edgecliff Road are vulnerable due to their orientation. he argues the views have the potential to be impacted by other intermediate development that occurs within the corridor between their building and the bay. His reasoning is as follows:

It should be noted that evidence was given by the owner of 287-295 New South Head Road that their property was not developed to its potential and that it is zoned so that the current terrace next to the built structure can be development to 4-5 storeys. On this basis, and contemplating same, the views that currently exist [for residents of 458 Edgecliff Road] will not exist in the event of the development of that site, however sensitive the owner of that block seeks to be.

(Applicants submissions page 9)

78. Mr Boskovitz concludes that whilst there will be some minor view loss, sitting views will be maintained to all units and this is due to the work undertaken by the applicant to provide viewing corridors in the portion of the development where the views are most prominent, notwithstanding that this creates more difficulties with height noncompliance (Applicants submissions page 9).

79. It is Ms Hewitt’s submission that the view loss assessment completed by Mr Gescheit should not be relied upon. Her reasoning is as follows:

The montage or blocking of the proposed building shows a blocked form inconsistent with the plans showing a different fenestration and finishes on the elevations. The use of photo montages in the assessment cannot be relies on as an accurate depiction of some intended future change to the present physical position as it fails to comply with the Courts Photomontage policy in the following ways:

a) There is no certification of the 3-D image or any wire diagrams to support the montage;

b) There is no survey data supplied in accordance with clause 1(d) of the Policy; and

c) There is no expert statement or other document demonstrating an expert opinion that proposes to rely on the montage that includes details of the name (and) qualifications of the surveyor who prepared the survey information from which the underlying data for the wireframe from which the photomontage’s drive was obtained; and

d) There are no RLs of the camera level.

(Respondents submissions page 12)

80. In response to the evidence of Mr Gescheit Ms Hewitt argues that it is not acceptable for the applicant to take the view that the amended scheme before the Court provides an improved view corridor as this is not the appropriate approach to the comparative exercise. It is her submission that in undertaking the assessment the Court should compare the impacts on views arising from the approved/ compliant building envelope and the current application.

Findings

81. To uphold the requested variation to the maximum building height I must be satisfied that the proposal is consistent with the objectives of the height control. In these proceedings Council’s substantive argument is that the development is inconsistent with the objective (d) of the building height control, namely: to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion on the basis of the view loss arising from the proposed development.

82. Both parties rely on the application of the planning principles in Tenacity to assess the view impacts that arise from the proposed development in determining if the development is consistent with objective (d) of the building height control. Relevantly at paragraph 29 of Tenacity Roseth SC states:

A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable.

83. Based on the evidence I accept the submission of Ms Hewitt and the evidence of Mr Lukas that the site specific height standard arose, at least in part, to achieve an appropriate balance in regards to view sharing. I am satisfied that this intent is substantiated by the following extract of the staff report to Council recommending the referral of the changes to the NSW Department of Planning for gateway determination:

Height

The applicant proposes a maximum building height of 18m across the site. A height of 18m would facilitate a 5-6 storey residential flat building, a scale generally in keeping with neighbouring buildings.

However due to the sloping nature of the site and the potential impacts on views, we recommend that a second height limit of 14m is also applied to the site. Second height limits apply to the highest part of the site, which for this site would be the south-western corner adjoining New South Head Road. A second height limit of 14m would restrict the built form to provide certainty that the building can extend to a height no greater than indicated in the view analysis.

(Exhibit 5)

84. On the basis of the preceding I can conclude that the two applicable height controls for the subject site have view sharing as part of their planning purpose. I am satisfied it is appropriate to give substantive weight to the controls and their purpose given their specificity, the engagement with the community which influenced their adoption and that they have recently been reconfirmed in the adoption of LEP 2014 (BGP Properties Pty Ltd v Macquarie City Council 138 LGERA 237; [2004] NSWLEC 399).

85. In determining the view impacts that will arise from the proposed development I have considered the evidence of the planners, the two view impact assessments prepared, the submissions from the residents and my own observations during the onsite view. On balance I am satisfied that the view assessment prepared by Mr Gescheit should be given less weight for the reasons outlined in Ms Hewitt’s submissions (refer paragraph [79]). In making this finding I adopt those reasons.

86. In applying Tenacity I am satisfied that the views currently enjoyed by the residential apartments at 458 Edgecliff Road are categorised as iconic and highly valued as they comprise the water land interface and views to Double Bay (a bay of Sydney Harbour). I accept the assessment of Mr Lucas and his reasoning at (refer paragraph [62]) to conclude that the impact to unit 6 and 8 is moderate and the impact to unit 10 is minor.

87. The view loss that arises from the proposed development needs to be considered in the context of the wording of objective (d). It seeks to minimise the impacts of new development on adjoining or nearby properties from disruption of views.

84. The common meaning of minimise from the Macquarie Dictionary relevant to these proceedings is: to reduce to the smallest possible amount or degree.

85. Whilst the applicant has sought to minimise the impacts by placing the development in the least sensitive location on the rooftop, the impact is caused by the exceedance of the maximum building height control. The approach taken by the Court in assessing whether an impact is appropriate is a comparative one between a compliant scheme and the proposal (Lane Cove Council v Orca Partners Management Pty Ltd (No 2) [2015] NSWLEC 52 at [219]). By reference to the architectural plans almost the entirety of the development sought exceeds the height standard, or the height of a compliant development.

86. The existing approval for development of the site (refer paragraph [8]) includes a condition that requires the reduction in the building height to a maximum of RL 49.0. The view analysis undertaken by GSA Planning in support of the 2014 amendment to the maximum height limit was based on height poles surveyed at a height of RL48.8.

87. A maximum building height on the site that had a consistent 18m height was assessed by GSA Planning as having a minor to moderate view impacts (refer paragraph [63]). In considering the appropriate height for the site the Council sought to reduce this view impact and introduced a secondary height limit for the site (Exhibit 5).

88. I am satisfied that the noncompliance with the height limit sought by the current proposal directly creates view impacts categorised as moderate on iconic or valuable views. These impacts are in addition to the view impacts that arise from a compliant height. On balance I find that those additional view impacts are unreasonable and are antipathetic to the achievement of objective (d) of the height standard.

89. For these reasons, and pursuant to cl 4.6(4)(a)(ii), I find that the proposed development is inconsistent with the objective (a) of the height standard and as such, development consent must not be granted.

90. Notwithstanding that the precondition is not met, on the basis of my findings at [paragraph 81- 92] I find that the view impacts that arise from the proposed development’s noncompliance with the height limit would warrant refusal on these grounds under a merit assessment pursuant to s79C(1) (b).

91. Accordingly, it is not necessary for me to determine the other matters in dispute between the parties.

Orders:

96. The orders of the Court are:

1. The objection pursuant to cl 4.6 of the Woollahra Local Environmental Plan 2014 is not sustained;

2. The appeal is dismissed;

3. Development application DA 2016/590/1 for the addition of a penthouse (level 6) to the existing approval at 240-246 New South Head Road is refused.

4. The exhibits are returned with the exception of exhibits 1, A and B

…………….

D M Dickson

Commissioner of the Court

Decision last updated: 16 January 2018