Pertama Development Pty Ltd v North Sydney Council

[2025] NSWLEC 1036

Land and Environment Court

New South Wales

Medium Neutral Citation:

Pertama Development Pty Ltd v North Sydney Council [2025] NSWLEC 1036

Hearing dates:

24-27 September 2025

Date of orders:

23 January 2025

Decision date:

23 January 2025

Jurisdiction:

Class 1

Before:

Dickson C

Decision:

The Court orders that:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

(2)   The appeal is dismissed.

(3)   Development application DA/293/22 for the construction and use of a residential flat building comprising eight units over two basement floors, demolition of existing structures, excavation and other works at 1, 1A and 1B Spruson Street, Neutral Bay (Lot 3 in DP 40926 and SP 32711) is determined by way of refusal.

(4)   The Exhibits are returned with the exception of Exhibits A, C, N and 1.

Catchwords:

DEVELOPMENT APPLICATION – demolition, tree removal, excavation and construction of residential flat building – whether the variation to the maximum height of building standard should be upheld – whether the view impacts arising from the development are acceptable – whether the site is suitable for the proposed development – is the development an overdevelopment of the site – excessive bulk and scale – building design and amenity – visual privacy impacts – appeal dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 8.7, 8.15

Land and Environment Court Act 1979, s 34

Environmental Planning and Assessment Amendment (Exceptions to Development Standards) Regulation 2023

North Sydney Local Environmental Plan 2013, cll 4.3, 4.6

State Environmental Planning Policy (Housing) 2021, Sch 7A, s 2

State Environmental Planning Policy No 65—Design Quality of Residential Flat Development, cl 28

Cases Cited:

Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61

El Khouri v Gemaveld Pty Ltd (2023) 256 LGERA 24; [2023] NSWCA 78

Futurespace Pty Ltd v Ku-Ring-Gai Council (2009) 169 LGERA 45; [2009] NSWLEC 153

Lahoud v Willoughby City Council (2024) 259 LGERA 419; [2024] NSWCA 163

Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117

Tenacity Consulting v WarringahCouncil (2004) 134 LGERA 23; [2004] NSWLEC 140

Texts Cited:

Macquarie Dictionary, online ed, accessed 16 January 2025

North Sydney Development Control Plan 2013

NSW Department of Planning and Environment, Apartment Design Guide, 2015

Category:

Principal judgment

Parties:

Pertama Development Pty Ltd (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Galasso (Applicant)
T To (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2023/310163

Publication restriction:

No

JUDGMENT

Nature of the appeal and the outcome

1. COMMISSIONER:   On 27 September 2022, Pertama Development Pty Ltd, the Applicant, lodged a development application with North Sydney Council (the Council) seeking consent for demolition of existing structures, tree removal, excavation, civil works, landscaping and construction of a residential flat building. The development is proposed at 1, 1A and 1B Spruson Street, Neutral Bay (Lot 3 in DP 409026 and SP 32711). The Applicant is the owner of the land and provides consent for the lodgement of the development application.

2. The Applicant lodged an appeal to the Court against the deemed refusal of the development application by the Council. A conciliation conference was held on 16 May 2024 pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act).   The parties were unable to reach an agreement at or following the conciliation. The conciliation conference was terminated, and the matter was listed for hearing.

3. Following the conciliation and the process of joint expert reporting, the development application was amended. As amended, the development application seeks consent for:

1. Demolition of all existing structures on the Site, including the existing, eight-unit residential flat building development at 1 Spruson and the dual occupancy development located at 1A and 1B Spruson;

2. Removal of eleven trees on the Site. I note that in the hearing it was agreed by the horticulture experts that the development is no longer likely to impact any street trees or trees on adjoining land (including Trees 23 and 24).

3. Excavation works to a depth of approximately 12 metres, and fill works to a height of 3.1 metres above natural ground level: (ref: Section 1.1, Private open space outside Master bed Unit 6);

4. Construction of a part five, part seven-storey residential flat building, containing eight dwellings;

5. Construction of two basement floors, containing dwellings and a car park with 12 parking spaces, with access secured via a driveway and car lift on the Spruson Street frontage;

6. Landscaping works on the Site;

7. Civil works within the adjacent road reserve, including the relocation of existing water infrastructure assets.

4. The development application no longer proposes the removal of, or works to, the community garden located in Spruson Street reserve. However, I note that there is an existing approval for the lowering of Sydney Water infrastructure in this location which is noted on the architectural plans.

Issues

5. The Respondent maintains that the development application should be refused for the following reasons. 

1. The development application relies on a variation to the maximum height development standard in the North Sydney Local Environmental Plan 2013 (LEP 2013). The written request pursuant to cl 4.6 of LEP 2013 fails to adequately justify the variation and as such the fails to satisfy this precondition to the grant of consent.

2. The proposed development has unacceptable impacts on the scenic and iconic views of neighbouring properties and fails to achieve reasonable view sharing. The proposed development will also have detrimental impacts on public views from Spruson Street.

3. The Site, and locality, contains landscape features which suggest a likelihood of Aboriginal objects. The likelihood of the presence of artefacts is supported by the due diligence report which accompanies the application. The development application fails to adequately assess the Aboriginal heritage significance of the Site and thereby fails to fully identify direct and indirect impacts to Aboriginal cultural heritage arising from the development.

4. The design of the proposed development was prepared without sufficient site analysis. Further, it does not minimise negative impacts on the amenity on the adjoining property nor is it reflective of the desired characteristics of the locality. Extant rock formations extending from the southeastern corner of 1A and 1B Spruson Street and on the adjoining land at 58 Kurraba Road have not been appropriately identified.

5. The development proposes extensive excavation of the site. Such excavation is uncharacteristic and inconsistent with the intent of the development controls. The excavation will have adverse construction and amenity impacts, particularly for apartments significantly below existing ground level. These impacts are not mitigated by the design of the development.

6. The excessive scale, excavation, mass and bulk, height and consequential offsite impacts of the Development Application results in an unreasonable overdevelopment of the land. The development application fails to provide sufficient landscaped areas, including adequate space to ensure growth of canopy trees. Further, there is insufficient detail in the development application to ensure that the retention of trees on 1 Boyd Lane is secured.

7. The proposed development will have unacceptable privacy impacts to adjoining dwellings as the setbacks proposed are insufficient and non-complaint with the Apartment Design Guide (ADG) and the North Sydney Development Control Plan 2013 (DCP 2013).

8. The development application lacks adequate provision for communal open space within the site or the development.

Outcome

6. I find the Respondent’s first contention, that the requested variation to the maximum height standard should not be upheld, is made out. I am satisfied that it is not unreasonable or unnecessary for the development to comply with the maximum height standard in this circumstance. My reasoning, in brief, is that the grounds advanced to establish that the objectives of the height standard are met, notwithstanding the variation, are not made out.

7. I am not satisfied that the proposed development is consistent with:

1. Objective (a) of the height standard seeks to promote development that conforms to and reflects the natural landforms of the site. As detailed later in the judgment, I conclude that the proposed development does not respond to the natural cross fall of the site which results in substantial excavation which is antipathetic to meeting this objective.

2. Objective (d) of the height standard seeks, in part, to maintain the privacy of residents of existing dwellings. Relevant to the current proceedings the existing dwellings affected by the proposed development are at 1 Boyd Lane and 5 Spruson Street. I find that the visual privacy of these properties is unreasonably detrimentally affected by the design, siting and height of the proposed development. I conclude that the proposed development does not met the objective to maintain privacy for residents of existing dwellings.

3. Objective (e) of the height standard, namely, to ensure compatibility between development, particularly at zone boundaries. As detailed later in the judgment, I find that the height variation proposed contributes to the lack of compatibility of the proposed development with the existing development, particularly at the boundary between the R4 High Density Residential development and the R2 Low Density Residential zone. I find that the proposed development at the interface with its northern boundary (the zone interface) has an unacceptably bulky and overbearing presentation which is exacerbated by the height of the proposed building and the non-compliance with the side setback and building envelope controls in DCP 2013.

8. In his closing submissions, Mr Galasso submitted that, whilst a state of satisfaction of the matters in cl 4.6 of LEP 2013 is required, it is not a jurisdictional fact: Lahoud v Willoughby City Council (2024) 259 LGERA 419; [2024] NSWCA 163; and El Khouri v Gemaveld Pty Ltd (2023) 256 LGERA 24; [2023] NSWCA 78.

9. I find that the variation request sought to the height development standard in cl 4.6 of LEP 2013 should not be upheld. When that determination is evaluated under the framework of s 4.15 of the EPA Act, I am satisfied that the likely impacts that arise from the height variation is sufficient to warrant the refusal of the development application: s 4.15(1)(b) of the EPA Act. In particular the failure of the development to respond to the landform of the site, the impact on visual privacy for adjoining properties, the unacceptably bulky and overbearing presentation of the development to the northern boundary are detrimental impacts that warrant the refusal of the development on merit.

Site and Locality

10. The properties 1A and 1B are the eastern side of Spruson Street and gain vehicular access from this street. The street terminates immediately to the west of the Site with a pedestrian path linking Spruson Street to Kurraba Road.

11. The property 1 Spruson Street has a primary frontage to Boyd Lane, with pedestrian and vehicular access available from this laneway. The Boyd Lane frontage of 1 Spruson is burdened by a right-of-way, in favour of the adjoining residential flat building development to the south, located at 58 Kurraba Road. This right-of-way provides vehicular access to the car park at 58 Kurraba Road, via a constructed concrete driveway.

12. The Site is steep with fall of around 17m from the northeast corner on Boyd Lane (RL30.46m) to the southwest corner on Spruson Street (RL13.12m).

13. The Site is bisected by series of large rock formations which run north-to-south. The rock formations are partly disturbed by existing development on the Site and adjoining properties, but substantial, undisturbed remnants remain.

14. The site benefits from significant views obtained over the south and western boundaries to Sydney Harbour, the city skyline and the Harbour Bridge.

Planning Controls

15. The following planning controls are relevant to the assessment of the written request to vary the height standard applicable to the site.

16. State Environmental Planning Policy No 65 Design Quality of Residential Apartment Development (SEPP 65) applies to the development application. The State Environmental Planning Policy Amendment (Housing) 2021 (SEPP Amendment) came into force on 14 December 2023. SEPP Amendment had the effect of repealing SEPP 65. Notwithstanding this, s 2 under sch 7A ‘General savings provisions’ of SEPP Amendment provides that the repeal does not apply to development applications lodged, but not finally determined prior to the 14 December 2023. As such, the provisions of SEPP 65 continue to apply to the development application.

17. Clause 28 of SEPP 65 requires consideration to be given to the design quality principles (cl 28(2)(b)) and the publication ADG (cl 28(2)(c)). The ADG provides numerical requirements for building separation. The ADG at 3F Visual Privacy provides design criteria for a building separation distance of 6-12 m up to 4 storeys and 9-18 m for up to 8 storeys. The minimum separation distances relate to the distance between non-habitable rooms and the maximum separation distances between habitable rooms. The ADG also provides for the average distance for separation between habitable and non-habitable rooms. The objective of 3F Visual Privacy is: “Adequate building separation distances are shared between neighbouring sites, to achieve reasonable levels of external and internal visual privacy”.

18. The site is zoned R4 High Density Residential pursuant to LEP 2013. It is located at a zone transition. The land immediately adjacent the site to the north is zoned R2 Low Density Residential. The land immediately adjacent the site to the west is zoned RE1 Public Recreation. An extract of the zoning map is provided below:

19. Clause 4.3(2) of LEP 2013 and the Height of Buildings Map prescribe a maximum height limit of 12m for the site. Clause 4.3(1) of LEP 2013 provides the following relevant objectives for the height standard:

4.3   Height of buildings

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

(a)  to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient,

(b)  to promote the retention and, if appropriate, sharing of existing views,

(c)  to maintain solar access to existing dwellings, public reserves and streets, and to promote solar access for future development,

(d)  to maintain privacy for residents of existing dwellings and to promote privacy for residents of new buildings,

(e)  to ensure compatibility between development, particularly at zone boundaries,

(f)  to encourage an appropriate scale and density of development that is in accordance with, and promotes the character of, an area,

(g)  to maintain a built form of mainly 1 or 2 storeys in Zone R2 Low Density Residential, Zone R3 Medium Density Residential and Zone E4 Environmental Living.

20. Controls on Residential Development are contained in Part B Section 1 of the North Sydney Development Control Plan 2013 (DCP 2013). Part 4 of Section 1 contains built form controls, with 1.4.6 addressing setbacks. The provisions state:

“1.4.6 Setbacks

Objectives

O1 To reinforce the characteristic pattern of setbacks and building orientation within the street.

O2 To control the bulk and scale of buildings.

O3 To provide separation between buildings.

O4 To preserve the amenity of existing dwellings and provide amenity to new dwellings in terms of shadowing, privacy, views, ventilation and solar access.

Provisions

…

Side

P2 Building setbacks are to comply with the requirements set out in Table B-1.5.

Figure B-1.3:

Setback and building height plane controls for the R4 High Density Residential zone, where the height limit is equal to 12m or less. Note: The actual setback of the building may need to be increased to satisfy building separation requirements within cl.1.3.10 to Part B of the DCP.

…

P4 Where possible, side setbacks should match those on adjoining properties, or, if adjoining properties are not characteristic, with setbacks identified in the relevant area character statement.

...

Building Separation

P8 In addition to the setback controls in P1-P7 above, residential flat buildings are required to provide adequate separation between habitable rooms, balconies and non habitable rooms, in accordance with the provisions contained within s.1.3.10 to Part B of the DCP

1.4.7 Form, Massing and Scale

Objectives

O1 To ensure the size of new buildings are consistent with surrounding, characteristic buildings and they are not significantly larger than characteristic buildings.

…

Provisions

...

P2 Where applicable, the number of storeys within a building should be consistent with that identified in the relevant area character statement (refer to Part C of the DCP).

…

P7 Residential flat buildings should use a pitched roof form to reflect the prevailing roof typology or that identified in the relevant area character statement (refer to Part C of the DCP).

P8 Despite P7 above, Council may consider approval of a residential flat buildings with a flat roof, but only where:

(a) the development complies with the height requirements under P1 above; and

(b) where the top-most storey has been setback to comply with a 36

degree angle back from the top edge of the storey located immediately below (refer to Figure B-1.4).

21. Part 4 of Section 1 contains built form controls, with 1.3.10 addressing Visual Privacy. The provisions state:

1.3.10 Visual Privacy

Objectives

O1 To ensure that existing and future residents are provided with a reasonable level of visual privacy.

Provisions

P1 Provide visual separation between any non-residential use and dwellings.

P2 Residential flat buildings are to provide adequate separation between habitable rooms, balconies and non-habitable rooms, consistent with SEPP (Housing) 2021. The relevant building separation distances are reproduced in Table B-1.4. Increased setbacks may be required to ensure that adequate solar access is provided to neighbouring dwellings.

Windows

P3 Locate windows to avoid direct or close views into the windows, balconies or private open space of adjoining dwellings.

P4 Where windows are located with a direct outlook to windows of an adjacent dwelling, the windows must be provided with a minimum sill height of 1.5m, or use fixed obscure glazing or other privacy devices.

P5 Provide suitable screening structures to minimise overlooking from proposed dwellings to the windows, balconies or private open space of adjacent dwellings, to windows, balconies or private open space of dwellings within the same development.

22. The SEE notes that the proposed development is non-compliant with the side setback control (P2) and the building envelope control. The variation is argued to be acceptable on grounds similar to those argued in the written request to vary the maximum height standard at cl 4.3 of LEP 2013. Further, flexibility in the application of the controls is sought pursuant to cl 4.15(3A) of the EPA Act.

23. Finally, the planning principle in Seaside Property Developments Pty Ltd v Wyong Shire Council [2004] NSWLEC 117 (“Seaside”), discusses development which occurs at the interface of two zones. One of the points in Seaside, at [25], is that in locations at the interface between zones “any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone”, and that:

“… in considering the likely future character of development on the other side of the (zone) interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like.”

Should the request to vary the maximum height standard be upheld?

24. The maximum height of the proposed development is 15.57m, a variation to the height standard of some 3.57m. The architectural plans graphically demonstrate the exceedance of the height standard with the inclusion of the height plan in the relevant elevation and section plans.

25. The Environmental Planning and Assessment Amendment (Exceptions to Development Standards) Regulation 2023 (Reg 2023) and the Standard Instrument (Local Environmental Plan) Amendment (Exceptions to Development Standards) Order 2023 commenced on 1 November 2023. Schedule 6 ‘Savings and Transitional Provisions’ of Reg 2023 has the effect that the changes to cl 4.6 in Standard Instrument local environmental plans only applies to development applications made on or after 1 November 2023. This development application was made on 27 November 2022.

26. The development application includes a written request to vary the maximum height standard prepared by Gyde Consulting (written request).

27. Clause 4.6 of LEP 2013 contains a precondition to consent at subcll (3) and (4) as follows:

4.6   Exceptions to development standards

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

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)  Development consent must not be granted for development that contravenes a development standard unless—

(a)  the consent authority is satisfied that—

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  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 the zone in which the development is proposed to be carried out, and

(b)  the concurrence of the Planning Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

…

28. Clause 4.6(4) of LEP 2013 establishes preconditions that must be satisfied before a consent authority can exercise the power to grant development consent (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 at [13] (“Initial Action”)). It is well established that the state of satisfaction required by cl 4.6(4)(a) of LEP 2013 mandates that the Court, in exercising the functions of the consent authority, must in fact be satisfied of the matters in cl 4.6(3), and that the state of satisfaction must be reached by reference to the written request. 

29. Further, the “development” referred to in subcll 4.6(2), (3) and (4) of LEP 2013 is the development that is the subject of the development application, being the proposed residential flat building: Baron Corporation Pty Limited v Council of the City of Sydney (2019) 243 LGERA 338; [2019] NSWLEC 61 (“Baron”) at [9]. The matters at 4.6(3) of LEP 2013 are as follows:

(3)  Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the Applicant that seeks to justify the contravention of the development standard by demonstrating—

(a)  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  that there are sufficient environmental planning grounds to justify contravening the development standard.

30. Further, the consent authority must form two positive opinions of satisfaction under cl 4.6(4)(a) of LEP 2013. The consent authority must be satisfied that the Applicant’s written request has adequately addressed the matters required to be addressed by cl 4.6(3) and that the proposed development will be in the public interest because it is consistent with the objectives of the contravened development standard and the zone, at cl 4.6(4), as follows:

(4) Development consent must not be granted for development that contravenes a development standard unless:

(a) the consent authority is satisfied that:

(i) the Applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii) 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 the zone in which the development is proposed to be carried out, and

(b) the concurrence of the Secretary has been obtained.

31. On appeal, the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(6) of the Land and Environment Court Act 1979, but should consider the matters in cl 4.6(5) of LEP 2013 (Initial Action at [29]).

Is compliance with the standard unreasonable or unnecessary?

32. The common ways in which an Applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary are summarised by Preston CJ in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 at [42]-[51] (“Wehbe”) and repeated in Initial Action [17]-[21]. They are:

1. the objectives of the development standard are achieved notwithstanding non-compliance with the standard;

2. the underlying objective or purpose of the development standard is not relevant to the development, so that compliance is unnecessary;

3. the underlying objective or purpose would be defeated or thwarted if compliance was required, so that compliance is unreasonable;

4. the development standard has been abandoned by the Council;

5. the zoning of the site was unreasonable or inappropriate so that the development standard was also unreasonable or unnecessary (note this is a limited way of establishing that compliance is not necessary as it is not a way to effect general planning changes as an alternative to strategic planning powers).

33. The five ways to demonstrate compliance is unreasonable/unnecessary are not exhaustive, and it may be sufficient to establish only one way (Initial Action at [22]).

34. The Applicant’s written request justifies the contravention of the height of buildings development standard on the basis that compliance is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard.

(a) to promote development that conforms to and reflects natural landforms, by stepping development on sloping land to follow the natural gradient.

35. The written request notes that the site has two distinct levels. 1 Spruson Street, the location of the existing strata titled residential flat building is located on the higher eastern end of the site. The existing ground level in this portion of the site is between RL 25.32 and RL 30.46. In contrast the frontage of the site at its western boundary has levels ranging from RL 13.12 to RL 25.49. As a result, the longitudinal fall of the site is around 17.3m. Further, there is significant cross fall of between 3 to 5.4m.

36. A remnant rock outcrop is located on the southern side of the site, approximately 40m from the western boundary. This outcrop, and the rock platform above it, traverse over the site and continue into the adjoining land to the south of the site.

37. The written request argues that the development is consistent with this objective as follows:

“The proposed building is designed to incorporate multiple steps to respond to the steep topography of the site. The floor space has been distributed to allow stepping volumes to occur.

…

The western portion of the building fronting Spruson Street is lower in height, reflective of the topography of the land. The breaches of building height are restricted to the western parts of the building at levels B2 to B4, where the gradient of the existing ground line is the steepest. Open balconies are introduced at this section of the building to minimise protrusion above the height plane.

The built form has incorporated gradations in height from east to west. The floor plates at level B3 and above are also setback from the southern boundary to relate to the crossfall of the site. As such, stepping is provided in two directions to reflect the dual fall in gradient and characteristics of the landform of the site.”

(Exhibit C, pp 7-8)

38. The Court was assisted by expert town planning evidence in relation to the achievement of this objective by Mr Brett Brown (Respondent) and Mr Stephen Kerr (Applicant).

39. Whilst Mr Brown agrees that the proposed built form does step down the site, he argues that it is firstly insufficient, secondly that the non-conforming height adds to the visual bulk of the building and thirdly, that these impacts (and the non-compliance in height) could be remedied by reducing the unnecessarily large setback of the building to Boyd Lane (the east). Further, Mr Brown argues that the proposed building fails to step in response to the north-south cross fall of the land. Finally, in his assessment of the achievement of the objectives, Mr Brown gives weight to the substantial excavation proposed in the development and the result that the non-compliant elements will be 5-6 storeys in height which is well above the four storeys intended by the 12m height limit at cl 4.3 of LEP 2013.

40. Further, Mr Brown argues that the proposed development is inconsistent with the objectives of the planning controls and objectives in section 1.3.1 of DCP 2013 in relation to Topography. He summarises those inconsistencies as follows:

1. Due to the extensive excavation and the failure to retain the central rock outcrop, the development is inconsistent with the following objectives of section 1.3.1 of DCP 2013, Part B:

Objective

O1 To ensure that the natural topography and landform are maintained.

…

O4 To minimise excavation and site disturbance so as to retain natural landforms, natural rock faces, sandstone retaining walls and the like and to retain natural water runoff patterns and underground water table and flow patterns.

…

2. For the same reasons, the development varies control P2 that states: “New development should not result in the removal or covering of rock outcrops, overhangs, boulders, sandstone platforms or sandstone retaining walls.”

3. The extent of excavation results in a variation to control P3 which limits proposed finished ground levels to being a maximum of 500mm above or below existing ground level.

4. Proposed unit 1, and other habitable rooms vary control P4 as they are proposed to be located more than 1 metre below ground level existing for more than 50% of the room.

5. The extent of excavation varies control P9 which states:

“Consent must not be granted to a development for the purposes of multi dwelling housing or residential flat buildings in any residential zone, where the excavation for any associated garages, car parking, plant rooms or ancillary storage and access thereto exceeds 70% of the site area.”

41. Mr Brown concludes that the level of non compliance with the controls in DCP 2013 is supportive of the conclusion that the degree and location of excavation proposed in the development application is excessive and that the development is not compatible with objective (a) of the height control in LEP 2013.

42. In contrast, the evidence of Mr Kerr places emphasis on the findings of O’Neil C in Big Property Group Pty Ltd v Randwick City Council [2021] NSWLEC 1161 (“Big Property”) at [42]. Applying these findings Mr Kerr argues:

1. That the nine-storey building at 58 Kurraba Road should not be discounted from an appreciation of the desired future character,

2. That the development standards for building envelopes are frequently generic and do not account for existing and approved developments, nuances of individual sites, the location of heritage items on the site and other such matters,

3. In contrast to the evidence of Mr Brown, the architectural plans, including the north and south elevations, demonstrate the variation in the building form that is responsive to the sites crossfall,

4. The height exceedances are minor and offset by ‘unused’ building height capacity that results from the site’s topography,

5. The height exceedance does cause adverse environmental impacts.

Findings: objective (a) of cl 4.3 in LEP 2013

43. This objective of the height standard seeks to promote development that conforms to and reflects natural landforms. It seeks for development to do this by stepping that development on sloping land to follow the natural gradient of the land.

44. Having reviewed the proposed development and the evidence of the experts, I am not satisfied the proposed development achieves this objective of the height control. My reasoning is as follows:

1. I accept and prefer the evidence of Mr Brown that the proposed development does not respond to the cross fall (natural landform) of the site. I adopt his evidence as summarised at [39-40]. The evidence of Mr Kerr in the joint report does not seek to rebut this evidence.

2. In my view the lack of responsiveness to the significant crossfall of the site is evidenced in the significant depth of excavation required for Units 1 and 2 and the lack of stepping of form in the north south direction. Unit 1 in particular is sited substantially below existing ground level. The existing ground level in this location is RL 14.04, with the proposed finished floor level of RL 12.470.

3. The quantum of excavation required, and its depth, is a relevant indicia to be considered in determining whether this objective is achieved. The development seeks to excavate some 69% of the site. (Exhibit L)

4. The extent of variation to the controls at 1.3.1 of DCP 2013 is a relevant matter. The objectives of those controls are also directed to development conforming to, or reflecting, the natural land form.

5. The text of the objective includes the use of the word “promote”. The appropriate definition of this term in the Macquarie Dictionary is:

“…

2. to further the growth, development, progress etc of; encourage.

…”

The objective seeks more than consistency with or responsiveness to the existing site landforms, it seeks to encourage conformity and emulation of those forms in the development. Giving this term in the objective its meaning, I am not satisfied that the design of the development is consistent with the encouragement of built forms that conform to and reflect the natural landform. In contrast, the proposed development undertakes significant excavation to superimpose on the site a flat platform which forms the basement level. This new basement level is then replicated above and below to form the habitable and non-habitable floors. Despite the floor plates traversing the east-west length of the site (some 37m-39.5m) they are set at a consistent floor level. This approach can be contrasted with the existing ground level of the site which over the same length has a difference in level of some 15.57m.

6. Further, the siting of habitable spaces at the levels designated has resulted in a number of subterranean or partially subterranean spaces where amenity is compromised. For example, the relationship of Unit 1 with the proposed external finished level and the need for only highlight windows on the southern elevation, such as in Unit 5. This approach to the siting of the development is not consistent with objective (a) of the height objective.

7. The side setback areas to the north of the proposed building are designed at a proposed ground level that seeks to relate to the habitable floor levels of the units adjacent but have little relationship to the existing ground level, or the ground level of the properties to the north. For example, the existing ground adjacent the boundary at 5 Spruson Street is RL 25.360 and 1 Boyd Lane is 26.60. The proposed ground level immediately south of the boundary referable to these spot levels are RL 22.570 and RL 21.77. This has resulted in the need to accommodate the retention of existing trees 23 and 24 through a complex series of suspended retaining structures.

8. I accept that the need to gain vehicular access off Spruson Street results in the provision of carparking at a limited range of finished basement levels. However, I am not persuaded that this is such a limiting factor that it offsets the preceding issues.

45. On the basis of the evidence and the site view I am satisfied that the proposed development is inconsistent with the objective of the height control to promote development that conforms to, and reflects the sites natural landform.

46. I find that the proposed development does not meet objective (a) of the height standard. For the above reasons, I find that I cannot be satisfied that the applicant’s written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2013.

(b) to promote the retention, and if appropriate, sharing of existing views.

47. The development application is accompanied by a View Sharing Assessment report (VSA) prepared by Urbis. The site is located at the termination of Spruson Street. The subject property, and a number of properties set higher in the street, obtain views to the city skyline and the Sydney Harbour Bridge (SHB). At the hearing, the focus of the evidence on the acceptability of the view impacts arising from the proposed development was on 10 Aubin Street and 5 Spruson Street. The expert evidence is summarised below.

48. With the assistance of the VSA, the written request argues that despite the height variation the proposed development achieves the objective of retention and sharing of views.

“The assessment [the VSA] notes that those portions of the built form which depart from the height control, including the western edge of the upper three levels (B2, B3 and B4), do not cause view loss for the closest and most affected neighbours at No 5 Spruson Street or No. 1 Boyd Lane. The views that will be lost will, including those from the internal locations of No 5 Spruson Street and the roof terrace of No. 1 Boyd Lane, would have been lost by complying setbacks and heights. Those views that would be lost comprise filtered views of part of the Sydney Harbour Bridge, as well as existing vegetation and boundary fence; they are oblique and obtained across the side boundary. The additional height beyond the 12m control currently sought is confined to the upper sections of the building and does not cause view loss for 5 Spruson Street and No 1 Boyd Lane.

In lieu of providing additional floor space at level A4-B1, which would have been compliant with the 12m height control, the amended proposal has created a view channel from the front deck of No. 5 Spruson Street so that a filtered view of the upper part of the Sydney Harbour Bridge will be kept.”

(Exhibit C)

49. The written request argues that the dwelling at 10 Aubin Street currently has only a partial view of the upper portion of the SHB from the front verandah. The VSA describes this view as constrained and limited to the uppermost part of the bridge arch and the flag poles. The written request argues this view is not impacted by the proposed development.

50. The written request concludes that, despite the variation in maximum height, the development meet the objective to promote the retention and appropriate sharing of existing views.

Evidence of the view loss experts

51. The Court was assisted by expert evidence in relation to the view impacts arising from the development from Ms Maze-Riley (Applicant) and Dr Pollard (Respondent). In their evidence the view loss experts apply the reasoning and methodology of the Court’s planning principle enunciated in Tenacity Consulting v Warringah Council (2004) 134 LGERA 23; [2004] NSWLEC 140 at [25]-[29] (“Tenacity”).

52. Overall, the experts agree that no height exceedances create greater than moderate view impacts in the terms detailed in Tenacity. Further, they agree that the western trailing edge of the upper three levels of the building (levels B02, B03 and B04) do not cause view loss for the closest neighbours at 1 Boyd Lane or 58 Kuraba Road. That agreement is detailed below:

“58 Kurraba Road

North-facing dwellings at 58 Kurraba Road will be subject toa limited extent of visual change and view loss in both quantitative and qualitative terms. The upper part of the proposed built form which primarily affect views from 58 Kurraba Road are complying with the height control and as such that change, or extent of blocking is contemplated by the controls. The view to be lost is characterised, in Tenacity terms, by areas of low scenic quality. In this way the view to be lost is of limited merit and significance so that the experts agree view loss of dwellings at 58 Kurraba Road is reasonable.

1 Boyd Lane

1 Boyd Lane is the upper and east dwelling of the dual occupancy which includes 5 Spruson Street. South-westerly views from the dwelling interior and first floor balcony do not include icons or iconic elements and are not considered in Tenacity terms to achieve high scenic quality. A partially filtered view of an iconic element (the Sydney Harbour Bridge arch and upper pylon) is available from the northeastern- most corner of the dwelling’s outdoor terrace. The view is obtained from standing and seated positions, via this dwelling’s side boundary, across a central part of the subject site – approximately along the current boundary between the subject lots. This view would be blocked completely by low and fully complying parts of the proposal, if other considerations such as protection of the rockface, and site amalgamation, did not preclude or limit building in this part of the Site. The experts agree that view loss for 1 Boyd Lane is not caused by the proposed height non compliances.”

(Exhibit 10)

53. I note that Ms Maze-Riley accepted in her oral evidence that she did not assess whether the built form was compliant with the building envelope or setback controls in DCP 2013, and instead she focussed on compliance with the height controls in her analysis.

View impacts for 1 Spruson Street

54. The experts do not agree whether the front setback for the proposed built form at Level 4 (particularly the western glazing line of proposed Unit 4 and Unit 6) is sufficient to provide an appropriate view sharing outcome for the property at 1 Boyd Lane. It is Dr Pollard’s evidence that the view channel created by the western setback of Level B1 and B2 (Unit 4 and 6) is insufficient. He argues that whilst the current setback retains the view of the SHB from the external balcony of 5 Spruson Street, the setting or curtilage of the view of the SHB is so reduced that it unacceptably diminishes the quality and composition of the iconic view.

55. Further, Dr Pollard argues that a greater setback at this location is warranted on the grounds that the design of the north-eastern corner element of the building adds to the bulky presentation of the proposed development to the northern boundary. He argues that:

“7. The two-storey north-eastern corner element which determines the plane forming the edge of the “view-channel” is set at a different angle to the street-facing facades of the floor below, which are parallel to the front boundary. This causes the double height corner form to have a lesser setback “step” at its most exposed corner of the building, which works against the DCP intent of the upper, fourth floor of a building being set back. The corner is particularly exposed to the more elevated section of Spruson Street towards Aubin Street, due to the fact that the street boundary is obtusely angled to the side boundary, rather than being at ninety degrees. This contributes to the bulky, elevated form at the point at which its upper component, is non-compliant with the height plane. A greater setback of this predominant element is warranted, not only in terms of urban design, but [it] would also assist the issue of the crowding of the Harbour Bridge “view channel”.”

(Exhibit 10)

56. In her evidence Ms Maze-Riley notes that the whilst the proposed building is not fully compliant with the relevant setback controls in DCP 2013, the design proposes additional setback (beyond the required) to the west for Level B1 and B2 (Unit 4 and 6) to benefit the views from 5 Spruson Street. Further, she disagrees with the evidence of Dr Pollard that the proposed development will impact the setting of the SHB view obtained from 5 Spruson Street. She argues that this is demonstrated in the VSA. She concludes that:

“17. Notwithstanding the proposed development alters the spatial composition of the view and introduces new built form into the foreground, the proposal predominately blocks an existing roof form on the subject site, vegetation and building development in Milsons Point, and does not block scenic, iconic or highly valued views as defined in Tenacity terms. In my opinion the extent of view loss, retention of all of an iconic element that is currently available via a side boundary view, from an external location, provides for reasonable and supportable view sharing.”

(Exhibit 10)

57. I note that the Respondent’s without prejudice conditions of consent include the following condition which seeks to amend the development by increasing the setback of the glass line of Unit 4:

“B1A. Required Design Changes

Prior to the use of a construction certificate, the architectural plans (and where necessary, landscape plans) must be amended to incorporat e the design amendments specified below. Satisfaction of the requirements below shall be confirmed upon written advice by the Council’s Manager Development Services, prior to the issue of a Construction Certificate.

The amendments required are as follows:

…

- The western setback of the street facing wall of Units 4 and 6 (as shown on DA2.05 (Rev F dated 08/07/24) and DA2.06B (Rev F dated 08/07/24) to the architectural drawings prepared by Marchese Partners) is to be increased by 800mm to increase the view channel provided to the open space of the adjoining dwelling at 5 Spruson Street.

…”

58. The Applicant’s primary position is that it disagrees with the imposition of the proposed condition detailed in the preceding. The Applicant’s secondary position is that the condition should be imposed in the following terms:

“- The western setback of the street facing wall of Units 4 and 6 is to be increased by 800mm and the eastern setback of the building facing Boyd Lane is to decrease by 800mm to increase the view channel provided to the private open space of the adjoining dwelling at 5 Spruson Street.”

59. The view impact experts were called for cross examination. In relation to the necessity of an increase in setback to the west for Level B1 and B2 (Unit 4 and 6) to benefit the views from 5 Spruson Street, Ms Maze-Riley confirmed that in undertaking the VSA she had not considered the compliance of the building with the building envelope control at 1.4.6 in Part 4 of Section B of DCP 2013. Fairly she accepted that if the development was compliant with this control, a greater view corridor would then be available for 5 Spruson Street. However, she argues that whilst such an amendment would result in a wider view, it is unnecessary as it would not improve the scenic quality of the view. In contrast Dr Pollard’s oral evidence was that the increased setback is necessary as will allow the retention of the setting of the SHB (the city scape).

View impacts for 10 Aubin Street.

60. The experts agree in the joint report that the height and bulk proposed including non-compliances in relation to the front setback, create visual effects and potential impacts on views from 10 Aubin Street. They agree that those view loss impacts arise for views obtained from the verandah and living room. The experts disagree on two key matters: firstly, how those views are impacted by an existing tree in a neighbouring property which is in the foreground of the views, and secondly, whether the impact of the proposed development on the existing views is acceptable.

61. On the first matter, the existing views from 10 Aubin Street to the SHB have a number of trees in the foreground. One of those trees is located in the front yard of 1 Aubin Street. The extent of views to the SHB that are available from 10 Aubin Street are impacted by the extent to which this tree is trimmed. The experts disagree as to the weight to be given to the impact of the proposed development on the existing views of the SHB given their continued existence is dependent on the trimming of an intervening tree.

62. Dr Pollard argues that the maintenance of views, despite the dependency on the trimming of the intervening tree, is reliable as:

1. There is a historical pattern of ongoing pruning by the landowner at 1 Aubin Street, presumably to keep it clear of the overhead powerlines.

2. The relevant tree, if allowed to grow unpruned, would reduce the solar access to 1 Aubin Street. This would be an incentive for the tree to be pruned.

63. In relation to the acceptability of the impact on the views from 10 Aubin Street to the SHB, Dr Pollard argues that the impacts are not reasonable. His reasoning is:

1. the portion of the development which causes the impact is non-compliant with the height plane controls.

2. The portion of the view impacted is material, leaving only the highest component of the arch and flagpoles of the SHB remaining visible.

64. In contrast Ms Maze-Riley argues firstly, that the views from 10 Aubin are insecure and uncertain given the reliance on pruning of vegetation on a neighbours property. Secondly, she concludes that the impact from the proposed development on the views to the SHB from 10 Aubin Street is reasonable. She argues that notwithstanding the view loss arising from a non-complaint portion of the building (that being the western extension at Level B4), the upper portion of the SHB will remain visible. It is her opinion that therefore the location of the SHB, its unique attributes and its contribution to the overall views from 10 Aubin Street will still be recognised, perceived and appreciated.

Findings: objective (b) of cl 4.3 in LEP 2013

65. I find that the proposed development appropriately conditioned does meet objective (b) of the height standard. My reasoning follows.

1 Spruson Street

66. I accept the agreement of the experts that the views impacted by the proposed development, the views of the city skyline and SHB are iconic views.

67. In relation to 1 Spruson Street those views are available from the Kitchen and Dining areas inside the dwelling and from the outdoor living area. The view is gained obliquely over the site boundary of the property with the subject site. I note that Tenacity argues that the expectation to retain side views is often unrealistic.

68. I note that Ms Maze-Riley accepted in her oral evidence that she did not assess whether the built form which impacted on the views of 1 Spruson Street was compliant with the built envelope controls in DCP 2013. Applying the planning principle in Tenacity, which is integrated into DCP 2013, whether the view impact arising from a compliant building is a relevant matter. Balancing these matters, and the evidence of the experts I accept that if the Court were to grant consent to the proposed development, it would be reasonable to do so applying the Respondent’s proposed condition extracted at [57] to achieve the objective of promoting the retention of views and their appropriate sharing. In my view the use of the term promotion in the text of the objective involves a meaning of encouragement or active action.

10 Aubin Street

69. For the same reasons detailed at [60], I accept the agreement of the experts that the views impacted at 10 Aubin Street by the proposed development are iconic.

70. In relation to 10 Aubin Street, the corridor through which those views are obtained is across that property’s front boundary and then across a number of adjacent properties and public land. After considering the evidence and analysis of the view impacts arising from the proposed development, I accept and prefer the evidence and reasoning of Ms Maze-Riley to the view impacts from 10 Aubin. I accept that it is appropriate to give less weight to the view impacts of the proposed development on the existing views of the SHB in circumstances where those views are, in part, gained because vegetation on a neighbouring property is trimmed. The owner at 10 Aubin Street has no direct ability to secure those views in circumstances where the intervening element is not on their land. In this way the views obtained are fortuitous.

71. Notwithstanding the above, an indirect benefit arising from the imposition of the Respondent’s condition, extracted at [57], on any approval may be a reduction in view impacts arising from the development for the owner at 10 Aubin Street.

72. Having then considered the impacts holistically I find I can be satisfied that the development, subject to the imposition of appropriate conditions, is consistent with the objective to promote the retention, and if appropriate, the sharing of existing views: Lahoud v Willoughby City Council (2024) 259 LGERA 419; [2024] NSWCA 163 [34]-[37].

73. For the above reasons, I find that I can be satisfied that the applicant’s written request adequately demonstrates the matters in cl 4.6(3)(a) of the LEP 2013.

(c) to maintain solar access to existing dwelling, public reserves and streets, and to promote solar access for future development.

74. The written request argues this objective is met as the proposed development has been designed to retain solar access to the adjoining dwelling. In particular it argues that the design maintains solar access to the adjoining residential tower at 58 Kurraba Road which is demonstrated by the sun-eye diagrams accompanying the development application.

75. In assessing the impact of the portion of the building that is non-compliant with height, the request argues:

“The non-compliant part of the building would cast shadows onto one of the first floor units within the building. However, this unit will still receive a minimum of 2 hours of sunlight in mid-winter. Other shadows created by the non compliant parts of the building will primarily fall on the car parking and undercroft areas of the building. This is acceptable as these are non-habitable areas of the building.”

(Exhibit C)

76. Relying on the sun-eye diagrams, the written request concludes that the development will have minimal impact on Spruson Reserve at 9am in mid-winter. After 9am those shadows move towards the south, away from the Reserve. The written request then progresses to assessing any impact of the proposed development on solar access to Anderson Park. The written request states:

“The development will cast shadows onto Kurraba Road (including the Council carpark). A shadow would extend to Anderson Park at 9am mid winter. By 10am, that shadow would be substantially shifted away from Anderson Park. The length of the shadows is due to the topography and elevated location of the site above the foreshore areas, and is not a result of inadequate design.

In effect, the mature trees within Spruson Street Reserve and the adjoining property at 58 Kurraba Road, in conjunction with the stand of trees along the edge of Anderson Park, would cast shadows within the park itself.

A fully compliant design would still cast shadows onto the park at those times with very minor reduction.”

(Exhibit C)

77. The written request concludes that the portions of the proposed development which contravene the maximum height standard do not cause unreasonable overshadowing to the adjoining dwellings, public open spaces or streets.

78. Mr Brett Brown, the Respondent’s town planning expert accepts in his evidence that the information submitted with the development application demonstrates that the required level of solar access to existing dwellings will be maintained, that there are no unreasonable impacts on the public domain and that future development (including the proposal) will have adequate solar access. He concludes that the proposal achieves objective (c) of cl 4.3 of LEP 2013. Dr Pollard also accepts that the development application achieves technical compliance with the requirements of the ADG.

Findings: objective (c) of cl 4.3 in LEP 2013

79. I accept the agreement of the experts that the proposed development meets objective (c) of the height standard despite the variation to the height standard.

(d) to maintain privacy for residents of existing dwellings and promote privacy for residents of new buildings.

80. The written request argues that the portions of the proposed development which breach the height standard do not cause any unacceptable impacts on the privacy of the residents in the neighbourhood or residents in nearby or adjoining dwellings. The reasoning in the written request can be summarised as:

• Adequate levels of visual privacy would be maintained for the adjoining dwellings to the north of the site in three ways. Firstly, through the orientation of the living areas in the proposed units to the west and south west. Secondly, that the siting of the development was setback from the northern boundary by 3-4m and the side boundaries are landscaped. Thirdly, though the use of translucent glazing to proposed windows facing the northern boundary.

• Addressing those windows which are located in the parts of the building which breached the height limit, the written request argues that they do not create privacy impacts. This is in part due to differences in floor levels, orientation and the use of translucent glazing.

• The written request addresses the privacy impacts from any outdoor spaces, concluding that due to the orientation of those spaces and the placement of landscape planters, privacy impacts are not created.

81. The written request concludes that, despite the variation to the height limit, the proposed development maintains privacy for residents of the existing dwellings and promotes privacy for residents of the new development.

82. DCP 2013 contains development controls in Part B section 1 at 1.3.10. Those controls are extracted at [20]-[21].

83. The Court was assisted by expert evidence in relation to the potential privacy impacts arising from the development and the achievement of this objective from Dr Pollard, for the Respondent, and Oscar Stanish, for the Applicant. Their evidence in relation to this objective of the height control centered the achievement of visual privacy between the proposed development and the northern neighbors: 1 Spruson Street and 1 Boyd Lane.

81. It is Mr Stanish’s evidence that the site setbacks of the proposed development (at approximately 3m) are consistent with the planning controls in DCP 2013. In reaching this conclusion he relies on Table B-1.5 (extracted at [20]) which nominates a 3m setback control in the R4 High Residential zone for residential flat zone. Further, he references control P4 at 1.4.6 which requires side setbacks to “match those on adjoining properties, or if adjoining properties are not characteristic, with setbacks identified in the relevant area character statement”. In terms of setbacks on adjoining properties, Mr Stanish notes that the proposed setback is greater than that of 1 Spruson Street and 1 Boyd Lane to the north. Both of these properties generally have a 1.4m setback to the dwellings and a zero setback for the garage.

82. Separately in the joint report Mr Stanish then addresses the application of the building envelope control P2 at 1.4.6 and Table B-15 under a heading of “Upper level setbacks”. He concludes that compliance with this control on the subject site in unreasonable and unnecessary and that it should be varied on the following grounds:

1. On the subject the site a building that was compliant with the controls would be 1-2 storeys below the maximum height limit in LEP 2013 of 12m.

2. The proposed development is already below the height of the existing building at 1 Spruson Street and has similar relationship to its adjoining neighbors.

3. The 36⁰ angle of the building envelope control may not be feasible to implement given the narrow width of the subject site. Strict compliance would result in a top storey that had an unworkably narrow floor plate for residential development.

4. The objectives of the controls (B1 1.4.6 and 1.4.7) are met by the proposed development as:

1. The proposed development is consistent with the characteristic pattern of setbacks and building orientation within the street.

2. The separation between buildings is consistent with controls in DCP 2013 and the existing street pattern.

3. The upper levels of the proposal do not cause any significant amenity impact to the neighbours nor cause an issue for the amenity of the apartments within the proposal, including across matters such as shadowing, privacy, views, ventilation and solar access.

4. The size of the proposal is consistent with both the height of building control in LEP 2013 and the existing building at 1 Spruson Street.

5. A greater setback at the upper level in any of the frontages would not significantly change any of these relationships.

86. Mr Stanish concludes that the height, bulk and scale of the proposed development is an appropriate response to the site and its context and is consistent with the objective of the height control to maintain privacy for residents of existing dwellings and promote privacy for residents of new buildings.

87. In the joint report Mr Brown and Dr Pollard separately detail their assessment of the compliance of the development application with the side setback controls in DCP 2013. That evidence can be summarized as follows:

1. The development proposes a 17.7% variation to the side setback requirement of 3m, and significantly breaches the requirements of the building envelope control.

2. That the non-compliance has the greatest potential for adverse impact on the northern boundary for two reasons. Firstly, due to the length of the development proposed on this interface and the colocation of the variation to the setback controls and height breach at this point on the site. Secondly, as this is the interface with the R2 Low Density Residential zone.

3. It is Mr Browns evidence that the impact of the non-compliance with the setback and height controls creates an unacceptable impact to 1 Boyd Lane. His reasoning is as follows:

“In Figure 7 I have attempted to show the relationship of the proposal with the low density building forms (as the applicant has not done such an analysis). This shows how much of the building will be visible above the main living area and adjoining pool and open space of 1 Boyd Lane (as shown in Figure 9). This view to the SW over the site will be almost entirely occupied by the northern elevation of the proposal. The building is only setback 3m from 1 Boyd Lane with no articulation. The westward stepping of the building does not commence until the end of the rooftop garden on top of 5 Spruson Street. This part of the building breaches the building height, BHP [Building Height Plane] and top storey control and along with the inadequate landscaping along the boundary, creates an unreasonable visual impact and sense of enclosure for No 1 Boyd Lane.”

(Exhibit 7)

4. Dr Pollard’s evidence agrees with the analysis of Mr Brown. In addition, he argues that, given the difference in zoning between the subject site and the adjoining land, the development should also respond to the recommendation of the ADG for an additional three metre setback at zone interfaces.

5. Dr Pollard emphasizes that the intent of the building envelope control is to ensure that higher elements of the building are setback further from side boundaries to reduce their visual dominance from neighbouring properties. He concludes this has not been successfully achieved in the subject design.

6. In response to the evidence of Mr Stanish that compliance is impractical given the site width, Dr Pollard argues that:

“The ADG recommended setbacks should inform apartment design, and where unachievable due to site constraints, a carefully considered design approach should be taken to any part of a building closer to the boundaries than recommended. This involves addressing visual privacy and overlooking from all levels of the proposal. This consideration is not apparent in the proposal, which offers only a few obscurely-glazed windows to mitigate very substantial reductions (of 66%) to recommended setbacks. Higher floor windows with visual access to private open spaces are not screened at all.”

(Exhibit 7)

88. Both Dr Pollard and Mr Brown argue that there are two relevant impacts that arise from the variation to the side setback and building envelope controls. The first being that the effect of a reduced setback is to bring the portion of the building which is non-compliant with the maximum height control in LEP 2013 closer to the boundary, making the building appear more overbearing and bulkier. And secondly, the reduced setback exacerbates the overlooking available from all levels of the building into the adjoining properties.

Findings: objective (d) of cl 4.3 in LEP 2013

89. In my view, in his evidence, Mr Stanish incorrectly applies the setback controls in DCP 2013. He does so by not considering the controls in concert. The control P2 at Section 1.4.6 of DCP 2013, which details the side setback controls in Table B-1.5, nominates two requirements, a horizontal 3m setback and a building envelope (vertical) requirement detailed at Figure B-1.3. Mr Stanish only references the first of these requirements. The setback controls at 1.4.6 are also designed to be read together with the building envelope controls at 1.4.7 and the building separation controls at 1.3.10 in determining the appropriate built form. The building separation controls mirror the building separation controls in the ADG. So much is clear from the chapeau to Figure B-1.3 which states:

‘The actual setback of the building may need to be increased to satisfy building separation requirements within cl 1.3.10 to Part B of the DCP.”

90. It is not the case that the 3m horizontal setback control at P2 in 1.4.6 applies only to the level of the building closest to the existing ground level. I accept and prefer the evidence of Mr Brown and Dr Pollard on the application of the development controls in DCP 2013 and the ADG in relation to the required setback to the northern boundary.

91. Whilst the controls in DCP 2013 should be applied flexibility, I am not persuaded that a variation to the setback and building envelope controls is warranted on the northern boundary of the subject site. In particular, I accept and prefer the evidence and analysis of Mr Brown and Dr Pollard that the noncompliance with the setback on this interface creates adverse impacts for the adjacent properties to the north. Those impacts are to the visual privacy and the intrusive visual dominance of the proposed development.

92. Further, I accept that the reduction in the northern boundary setback has the two detrimental effects. Firstly, it exacerbates the visual dominance of the portion of the proposed building that is non-compliant with the maximum building height standard. Secondly, it increases the proximity of the overlooking opportunities that arise in the new development that impact on 5 Spruson Street and 1 Boyd Lane which is incompatible with the maintenance of privacy for the private open space of 1 Boyd Lane and 5 Spruson Street, as well as key living spaces in 5 Spruson Street. For these reasons I do not accept the assessment of Mr Stanish summarised at [85].

93. I find that the proposed development does not meet objective (d) of the height standard. For the above reasons I find that I cannot be satisfied that the applicants written request adequately demonstrates the matters in cl 4.6(3)(d) of LEP 2013.

(e) to ensure compatibility between development, particularly at zone boundaries.

94. As noted at [18] the subject site is at a zone boundary being zoned R4 High Density Residential zone and the R2 Low Density Residential zone.

95. The written request concludes the proposed development creates a suitable interface between the residential tower at 58 Kurraba Road, the denser forms within the R4 High Density Residential zone and the lower scaled built forms in the R2 Low Density Residential zone. The reasoning in the request can be summarised as:

• The building is substantially compliant with the height control apart from the western most portions of the upper levels. This exceedance correlates with the part of the site where the existing ground levels have the greatest gradients.

• The eastern part of the building presents a two-storey scale to Boyd Lane consistent with the adjoining and nearby dwellings in the R2 Low Density Residential zone. The top most point of the proposed building will be the lowest in height among existing buildings in the R4 zone fronting Boyd Lane.

• The proposed building will present a three to four storey scale to Spruson Street. The street frontage height is commensurate with the scale of development under a 12m control, which is the standard that applies to land on the opposite side of Spruson Street.

96. The written request concludes that the proposed development provides a suitable interface between the adjoining developments and zones.

97. I note that despite the variation to the setback and building envelope controls in DCP 2013 on the northern boundary of the site, the written request does not specifically address this interface.

98. However, the Addendum Statement of Environmental Effects (SEE) notes that the proposed development varies the building separation design criteria in the ADG on the northern boundary. In support of this variation, the SEE argues the reduced setback is acceptable on the following grounds:

1. The southern elevation of the existing building at 1 Boyd Lane comprises only three small translucent windows.

2. The elevated balconies and primary living room windows in the proposed development are oriented towards the west/south-west. As such, they are oriented away from 1 Boyd Lane and 5 Spruson Street.

3. The north-facing windows in the proposed building are mainly bedroom, office or bathroom windows. The SEE argues that these rooms are “passive use spaces”.

4. That the windows in the proposed building facing the northern boundary will utilise translucent glazing.

5. The two units which have north-facing living rooms, Unit 6 and Unit 7, and which don’t propose translucent glass, are situated at a level three and six metres respectively above the front deck of 5 Spruson Street.

6. The eastern part of the site has a width of 14.02m. Strict adherence to the building separation distance would be reasonable as it would not allow for functional floor plates and hence economic or orderly development of land.

99. The question of compatibility between development and the treatment of the zone boundary was the subject of expert evidence. That evidence can be demarcated into three broad areas. Firstly, the presentation of the façade of the proposed building to the northern boundary. Secondly, the proposed variation to setback controls and or building separation controls at the northern boundary, and thirdly the application of the planning principle in Seaside.

Presentation to the Northern boundary

100. In his evidence, Dr Pollard is concerned about the adequacy of the proposed developments consideration of the design principles in SEPP 65 and the planning controls in DCP 2013. His concerns can be summarised as:

1. The development fails to respond to the site topography, relying instead on substantial excavation which extends to the sites boundaries.

2. The existence of a number of proposed windows and private open space located proximate to the northern boundary generates visual and acoustic privacy impacts to the adjoining properties to the north. Dr Pollard argues that the impacts to the pool and outdoor open space area of 1 Boyd Lane and the private open space of 5 Spruson Street are unacceptable. His concerns were explored in oral evidence, and I note that the consent conditions propose additional obscure glazing for fenestration to the north elevation. However, Dr Pollard argues that privacy screening in the form of obscure glazing is not an appropriate or permanent means of achieving privacy.

3. The design of the building results in a very long northern wall, sited close to the property boundary and the zoning boundary which creates a bulky and overbearing presentation. The façade has limited articulation and where it is provided it is unlikely to be successful in breaking down the mass of the building as the horizontal variation between the façade elements is minimal.

4. The setback of the northern elevation is non-compliant with the provisions of DCP 2013 and the closeness of the building to the boundary adds the perception of its overbearing bulk from the adjoining properties at 1 Boyd Lane and 5 Spruson Street.

5. Finally, the lack of compliance with the upper level setback adds to the lack of compatibility between the form of the proposed building and the adjoining lower scale residential development to the north, which in conjunction with the planar nature of the elevation design, fails to ensure compatibility the development and the adjoining properties across the zone boundary.

101. In relation to Principle 9: Aesthetics Dr Pollard also focusses on the northern façade. He does so on the basis that it will be the developments most visible façade in the public domain. In the joint report, and his oral evidence, he raises concern about the presentation of the building in the public domain and its compatibility with the adjacent low density zoning. Those concerns can be summarised as:

1. The length of the panel design portion of the façade (some 25.5m) and the lack of articulation overall makes the elevation inappropriately imposing.

2. The proposed use of an off white paint finish for the concrete panels will further emphasise its bulk and prominence in the streetscape.

3. The overall length of the side elevation at 38m, and the limited setback to the northern boundary (under 3m) adds to its bulk and its sense of imposing mass for the residential dwellings to the north. This is an inappropriate adverse impact. Dr Pollard argues that in addition to the length and setback, the non-compliance with the building envelope controls in DCP 2013, add to this dominance. He argues:

“I agree with OS that development on the subject site will necessarily result in a different form to its neighbours, not only because of the different zonings, but also the building typology and architectural expression. This difference I presume to be why the ADG recommends an additional 3 metre setback to the standard 6 metres for lower floors, at zone interfaces with lower density areas. Likewise, I do not consider it necessary for the building to have a pitched roof, which would be unlikely in my opinion to fit comfortably with the scale of the building. However, the – DCP ’45 degree’ angle control and – DCP ’36 degree’ angle control also contribute to setting back mass for higher elements of the building, which has not been adopted for the facades facing the side boundaries. If there was a setting back of the upper floors, particularly on the northern face, this would potentially assist in reducing the slab-sided appearance of the building, and thereby reduce its visual dominance as seen from neighbouring properties and from Spruson Street- particularly if combined with an adequate articulation of the wall planes.”

(Exhibit 7)

102. For clarity, the reference to “DCP ‘45 degree control’” in Dr Pollard’s evidence extracted above is the control detailed in the table at P2 of 1.4.6 Setbacks in DCP 2013. His reference to DCP ’36 degree angle control’ is the control P8 at 1.4.7 Form, massing and scale in DCP 2013.

103. In terms of the development’s compliance with building envelope controls in DCP 2013, Dr Pollard argues that the lack of compliance generates the adverse visual bulk impact. In addition to his concerns about the presentation of the building to the northern boundary, Dr Pollard argues that the presentation to Spruson Street has adverse impacts. He argues that:

“In respect to the presentation of the development to the street, if the stepping of the development to Spruson Street were compliant with the 12m height plane, the visual bulk of the building would be lessened, and the upper floors could be better screened from the street, reducing the apparent height and stark contrast to the scale of the immediately adjacent 2-storey cottages.”

(Exhibit 7)

104. Dr Pollard concludes that the design and presentation of the proposed building to the northern boundary has an unacceptable detrimental impact on the adjoining properties arising from the visually dominant design of the façade, exacerbated by the height exceedance and the lack of compliance with the setback and building envelope controls in DCP 2013. Further, he argues that the design and presentation of the proposed building is incompatible with the scale of the existing development and fails to respond to the zone change at the northern boundary of the site.

105. In his evidence, Mr Stanish undertakes an assessment of the proposed development against the design principles in SEPP 65. Relevantly, in response to the evidence of Mr Brown and Dr Pollard, Mr Stanish argues that:

1. The design of the proposed buildings form and scale is consistent with the desired future character of the locality as explained in the planning controls in LEP 2013 and DCP 2013.

2. An appropriate transition is provided to the adjoining low-density development that adjoins the site to the north. There are no adverse amenity impacts that would warrant an increase in setback.

3. That the development will provide high amenity apartments with minimal impact on neighbours.

4. A development that incorporated the design changes proposed by Dr Pollard and exhibited full compliance with the development controls (building envelope, upper-level setback, and side setback) would be uncharacteristic and not responsive to the high density zoning of the site.

106. Further, Mr Stanish argues that any views of the development from the public domain are limited to the immediate areas of Spruson Street and Boyd Lane as well as minor visibility from Anderson Park. He says the proposal provides a visual transition, appropriate to its zoning, between the lower scale buildings to the north and the taller neighbour to the south at 58 Kurraba Road. He concludes that while the proposal is visible, particularly from Spruson Street, its visual response is appropriate to its zoning and the character of development sought by LEP 2013 and DCP 2013.

Setback/ separation distance

107. The compliance of the proposed development with the setback and building envelope provisions in DCP 2013 is addressed in paragraphs earlier in the judgment and are not repeated here.

The zone interface and the Seaside Planning principle

108. In the joint report, Mr Kerr notes that the principle in Seaside would also apply to the recent redevelopment of 5 Spruson Street (to the north of the subject site) as a strata titled dual occupancy. It is his analysis that the design of the dual occupancy does not appear to have been designed with an awareness of the potential redevelopment of the subject site in accordance with its R4 High Density Residential zoning. In particular, he notes the vulnerability to overlooking of the large picture window and balcony of 5 Spruson Street and the outdoor private open space of 1 Boyd Lane.

109. In relation to the application of the principle to the subject development application, he argues that the lack of adverse impacts arising from the proposed development supports the finding that the development applications response to the zone interface is acceptable and appropriate.

110. In contrast, Mr Brown argues that the proposed development is antipathetic to the outcome that would result from an application of the Seaside principle. He argues that in contrast to the principles approach to ameliorating or reducing development at the interface, the proposed development exceeds the height, setback and building envelope controls at the boundary with the R2 Low Density Residential zone. Further, he argues that these exceedances result in the amenity impacts for the adjoining properties (lack of visual and acoustic privacy and imposing visual bulk).

111. Mr Brown accepts that the principle in Seaside acts in two ways. Firstly, it reasons that residents in the lower density zone need to accept that development in the adjoining higher density area may have greater impacts than if they adjoin land zoned low density residential. Secondly, the principle argues that in developing the higher density land, property owners need to account for the potential impacts of that higher density development on the residents of the lower density area. Taking account of these impacts may mean that the full potential of the site under the relevant planning controls may not be realised.

112. Assessing the proposed development against the Seaside principle, Mr Brown argues it is inconsistent with its intent. He notes that the development application has the greatest areas of non-compliance at the point of the zone interface, those being a non-compliant setback, non-compliance with the building envelope control and non-compliance with the height standard.

Findings: objective (e) of cl 4.3 in LEP 2013

113. Having reviewed the proposed development and the evidence of the experts I am not satisfied the proposed development achieves this objective of the height control. My reasoning is as follows:

1. The lack of setback of the upper floors, which exceed the maximum building height standard, add to the visual bulk of the proposed building. That bulk has an adverse visual dominance impact on the adjoining properties to the north. Further, it adds to the uncharacteristic form of the development when viewed from Spruson Street.

2. The northern face of the building is, along with the façade to Spruson Street, the most sensitive facades of the proposed building. I accept the evidence of Dr Pollard that the architectural massing and design of the northern façade fails to respond to this sensitivity through articulation, materiality or modulation of the façade. In part, this visual bulk arises from non-compliance with the height standard.

3. Further, the architectural design relies on a fenestration pattern that directs views to the north and then relies on the nomination of opaque glazing to address the inherent privacy impacts arising from those windows. A design that had increased setback, or a façade which had deeper articulation would provide an ability to orient windows away from the boundary and reduce the privacy impacts arising from the development for adjoining properties.

114. For these reasons I accept and prefer the evidence of Dr Pollard at [100] that the proposed development does not ensure compatibility between itself and the adjoining development, in particular at the zone boundary which correlates with the northern property boundary.

115. Further, I accept the evidence of the planning experts that the planning principle in Seaside is applicable in the circumstances of this development. Given that the setback controls applicable in DCP 2013 do not address massing at a zone interface, the planning principle in Seaside provides some guidance that the development proposal needs to recognise and respond to the interface with the R2 Low Density Residential zone.

116. In my assessment, the height variation proposed contributes to the lack of compatibility of the proposed development with existing development, particularly at the zone boundary. The height exceedance correlates with the location of the private open space of 1 Boyd Lane and will be overbearing and visually intrusive when viewed from this location. I accept and adopt Mr Brown’s evidence at [110] and [112] in this regard. Further, when viewed from Spruson Street the façade of the proposed development, including the height exceedance, is of a height that is not compatible with the dominant character of the development in Spruson Street nor responsive to the interface with the R2 Low Density zone.

117. Whilst the proposed development may provide a visual transition between the residential tower at 58 Kurraba Road and the two-storey residential character of Spruson Street, in my assessment, the tower at 58 Kurraba Road is not the development which objective (e) is directed to. Objective (e) is directed to ensuring that where development is different, either by due to zoning, use, form or the like, it is nonetheless compatible with existing development. Further, the objective places emphasis on ensuring compatibility where a zone boundary exists.

118. I accept that the proposed development is compatible with development on land zoned R4 High Density in proximity to the site.

119. In the circumstances of this development, the tower at 58 Kurraba Road exists at a higher topographic level and in the background of any view of the proposed development when viewed from land zoned R2 Low Density. I am not persuaded that the form and height of the tower at 58 Kurraba Road is of significant weight in determining the appropriateness of the compatibility of the proposed development and the existing development at the northern boundary and the streetscape in Spruson Street.

120. For these reasons I find that the proposed development does not meet objective (e) of the height standard in LEP 2013.

Conclusion

121. Given my findings that the proposed development does not meet objectives (a), (d) and (e) of the height standard, I have not reached the state of satisfaction required by cl 4.6(3)(a) of LEP 2013.

122. I find that the variation request sought to the height development standard in cl 4.6 of LEP 2013 should not be upheld. When that determination is evaluated under the framework of s 4.15 of the EPA Act I am satisfied that the likely impacts that arise from the height variation (the unacceptably bulky and overbearing presentation of the development to the northern boundary, the impact on visual privacy and the failure to give adequate consideration to the interface with the low density residential zone) is sufficient to warrant the refusal of the development application: s 4.15(1)(b) of the EPA Act.

Costs

123. The Applicant was granted leave at the commencement of the hearing to amend their development application. The question of whether it was appropriate to make an order for costs thrown away under s 8.15(3) of the EPA Act was deferred to the final judgment.

124. The affidavit to the motion notes that the amended material does not propose amendments to the design of the development and is predominately responsive to either expert evidence or requests by the Respondent for clarification or additional information. In the alternative, Mr To for the Respondent argues that an order for costs should be made as the material the subject of the motion was broad in both scope and breadth, and meets the test of being more than minor.

125. Having reviewed the material in Exhibit L I accept the submissions of Mr To. I am satisfied that the proposed amendments are more than minor and that the usual order for costs thrown away be made under s 8.15(3) of the EPA Act. The amended material in the motion made amendments to the means and approach to the structural support of the basement, quantified the proposed excavation and the means of management of this stage of the construction, detailed further geotechnical investigation and presented root mapping and retention details for Tree 23 and 24. Applying the principles in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153; (2009) 169 LGERA 153 at [42] I find that the cumulative or overall effect of the amendments in the context and location of the proposed development are more than minor.

Orders

126. The Court orders:

1. The Applicant is to pay the Respondent’s costs thrown away as a result of the amendment of the application for development consent pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979, as agreed or assessed.

2. The appeal is dismissed.

3. Development application DA/293/22 for the construction and use of a residential flat building comprising eight units over two basement floors, demolition of existing structures, excavation and other works at 1, 1A and 1B Spruson Street, Neutral Bay (Lot 3 in DP 40926 and SP 32711) is determined by way of refusal.

4. The Exhibits are returned with the exception of Exhibits A, C, N and 1.

D Dickson

Commissioner of the Court

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Decision last updated: 23 January 2025