Smithers v Kiama Municipal Council

[2021] NSWLEC 1348

Land and Environment Court

New South Wales

Medium Neutral Citation:

Smithers v Kiama Municipal Council [2021] NSWLEC 1348

Hearing dates:

15-16 March 2021

Date of orders:

15 June 2021

Decision date:

15 June 2021

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

See directions at [73] below

Catchwords:

DEVELOPMENT APPLICATION – Torrens Title subdivision – construction of three detached dwellings – view loss

Legislation Cited:

Kiama Local Environmental Plan 2011 cll 4.1, 4.3, 4.4, 6.1 & 6.2.

State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004

State Environmental Planning Policy (Coastal Management) 2018

State Environmental Planning Policy (Infrastructure) 2007

State Environmental Planning Policy No 55 – Remediation of Land

Cases Cited:

Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSW LEC 140

Texts Cited:

Kiama Development Control Plan 2012

Category:

Principal judgment

Parties:

Nicole Smithers (Applicant)
Kiama Municipal Council (Respondent)

Representation:

Counsel:
M Mantei (Solicitor) (Applicant)
J Fan (Solicitor) (Respondent)

Solicitors:
Michael Mantei Planning Law Solutions (Applicant)
Lindsay Taylor Lawyers (Respondent)

File Number(s):

2019/400831

Publication restriction:

No

Judgment

Introduction

1. COMMISSIONER: This is an appeal against the actual refusal by Kiama Municipal Council of a development application number 10.2018.196.1 for the demolition of existing dwelling house & outbuildings and four (4) lot subdivision & construction of four (4) new dwelling houses (Development Application) at 5 Pacific Street, Kiama, Lot 21 DP 1218589.

2. Prior to this hearing, leave was granted by the court on 4 December 2020 to amend the application to a subdivision of three lots and the construction of three dwellings, each with two storeys and a double garage. This amendment, documented in the revision K architectural drawings, results from: the deletion of Lot D; a general reduction in height of finished floor levels and clerestory elements, and; the removal of parapets from the original application.

3. The subsequent proposed development before the Court is for the demolition of the existing dwelling and construction of three (3) dwellings and three (3) lot Torrens Title Subdivision.

4. The resulting lot sizes and respective gross floor areas as proposed are:

• Lot A has a site area of 440.61m², with a proposed three bedroom dwelling and a gross floor area of 163.66m².

• Lot B has a site area of 355.02m², with a proposed three bedroom dwelling and a gross floor area of 163.49m².

• Lot C has a site are of 538.85m², with a proposed four bedroom dwelling having a gross floor area of 184.54m².

The site

5. The site is located on a corner of Pacific Street, Kiama, one lot north of Antrim Street, and currently features a single dwelling and metal carport with a large, vacant rear garden. It has a north-eastern aspect which affords this, and neighbouring sites, a view of Bombo Beach and Bombo Headland to the north. The site slopes 6.3m from the street boundary to the northern corner and is located approximately 32m above an underground railway tunnel.

6. The immediate locality is characterised by low density residential developments, typically consisting of one and two-storey detached dwellings, and some dual occupancies.

Planning framework

Kiama Local Environmental Plan 2011

7. The site is zoned R2 Low Density Residential pursuant to the Kiama Local Environmental Plan 2011 (KLEP) and the proposed development for the purposes of a dwelling house and subdivision is permissible with consent in this zone.

8. The objectives of the zone, to which I must have regard are:

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

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

To increase the supply of secondary dwellings for affordable rental housing stock.

To provide economic and employment opportunities for people who conduct business activities from their homes where these will not adversely affect the amenity of neighbours or the neighbourhood.

9. Pursuant to KLEP cl 4.1 Minimum Subdivision Lot Size Standard, the site falls within Area G on the Lot Size Map and subsequently a minimum lot size of 450m² applies. The relevant objectives of this clause are:

(a) to ensure that subdivision reflects and reinforces the predominant subdivision pattern of the area,

(b) to minimise any likely impact of subdivision and development on the amenity of neighbouring properties,

(c) to ensure that lot sizes and shapes are able to accommodate development consistent with relevant development controls

10. It is noted that proposed subdivision lots A and B have a site area less than 450m², and subsequently KLEP cl 4.1A Exceptions to minimum lot sizes for development in Zone R2 and Zone R3 applies. The objective of this clause is “to encourage housing diversity without adversely impacting on residential amenity”. The relevant clause to this proposed subdivision is cl 4.1A(3):

(3)  Despite clause 4.1, development consent may be granted to a single development application for development on land to which this clause applies if the development is both—

(a)  the subdivision of land into 3 or more lots—

(i)  each lot being equal to or greater than 50% of the minimum size shown on the Lot Size Map in relation to the land if the land is in Zone R2 Low Density Residential, or

(ii)  each lot being equal to or greater than 150 square metres if the land is in Zone R3 Medium Density Residential, and

(b)  the erection of an attached dwelling, a semi-detached dwelling or a dwelling house on each lot resulting from the subdivision.

11. The proposed subdivision is for 3 lots, with each lot meeting the criteria in KLEP cl 4.1A(3)(a)(i) and 3(b). The subdivision lot size is therefore permissible subject to the submissions made by the respondent and discussed in the judgement below.

12. The height of buildings development standard for the site is 8.5m, pursuant to KLEP cl 4.3 and Height of Buildings Map Sheet 12. All proposed buildings are below this height limit.

13. The floor space ratio development standard for the site is a maximum FSR of 0.45:1, pursuant to KLEP cl 4.4 and Floor Space Ratio Map sheet 12. All units are below this maximum FSR.

14. On the Acid Sulfate Soils Map pursuant to KLEP cl 6.1 Acid Sulfate Soils, the site is mapped as containing class 5 Acid Sulfate Soils. Based on the evidence provided in the Statement of Environmental Effects (Exhibit A), I am satisfied that the development does not propose works of the type described in KLEP cl 6.1(2) and that the provisions of cl 6.1 are not triggered by this proposal.

15. Based on the report ‘Response to Clause 6.2 of Kiama LEP 2001, 5 Pacific Street, Kiama’ by Planning Ingenuity dated 7 April 2021, I have considered the matters listed in KLEP cl 6.2(3) and am satisfied that the objectives of cl 6.2(1) are met with the proposed development in regard to earthworks.

State Environmental Planning Policies

16. Pursuant to the requirements of State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a relevant BASIX certificate has been provided for each proposed dwelling.

17. Based on the evidence provided in the planning report (Exhibit 2 folio 158), I am satisfied the site is suitable for the proposed development having regard to the low risk of contamination, and that the requirements of State Environmental Planning Policy No 55 – Remediation of Land (SEPP 55) are met. Further conditions of consent have been included which address the possibility of any contamination or suspect material being encountered in the course of the development.

18. The site is positioned above a railway tunnel and therefore, pursuant to State Environmental Planning Policy (Infrastructure) 2007, the concurrence of Sydney Trains is required. This concurrence was granted on the 7 April 2021 subject to conditions of consent.

19. Pursuant to State Environmental Planning Policy (Coastal Management) 2018 (Coastal SEPP), the site is mapped within the ‘Coastal Environment Area’ and ‘Coastal Use Area’. Coastal SEPP cl 13(1) requires the consent authority to consider whether the proposed development is likely to cause an adverse impact on the following:

(a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment,

(b) coastal environmental values and natural coastal processes,

(c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1,

(d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms,

(e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(f) Aboriginal cultural heritage, practices and places,

(g) the use of the surf zone.

20. Based on the submission of the Applicant and the evidence provided in the Planning Report (Exhibit 2 folio 159) I am satisfied that the development is designed, sited and will be managed to avoid adverse impacts on any of the above items.

21. Coastal SEPP cl 14 is as follows:

14   Development on land within the coastal use area

(1)  Development consent must not be granted to development on land that is within the coastal use area unless the consent authority—

(a)  has considered whether the proposed development is likely to cause an adverse impact on the following—

(i)  existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability,

(ii)  overshadowing, wind funnelling and the loss of views from public places to foreshores,

(iii)  the visual amenity and scenic qualities of the coast, including coastal headlands,

(iv)  Aboriginal cultural heritage, practices and places,

(v)  cultural and built environment heritage, and

(b)  is satisfied that—

(i)  the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or

(ii)  if that impact cannot be reasonably avoided—the development is designed, sited and will be managed to minimise that impact, or

(iii)  if that impact cannot be minimised—the development will be managed to mitigate that impact, and

(c)  has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.

(2)  This clause does not apply to land within the Foreshores and Waterways Area within the meaning of Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005.

22. The impact of the proposed development on the relevant Coastal SEPP clause, cl 14(1)(a)(iii), is discussed further in this judgement.

Kiama Development Control Plan 2012

23. The following relevant chapters of the Kiama Development Control Plan 2012 (KDCP) apply to this proposed development:

• Chapter 2 Overall Controls;

• Chapter 4 Low Density Development;

• Chapter 7 Subdivision;

• Chapter 8 Landscaping;

• Chapter 9 Car Parking Requirements; and

• Chapter 11 Waste Requirements.

Public Submissions

24. Subsequent to the renotification of the amended proposal, Council received four objections on behalf of three landowners, raising issues of view loss, privacy impacts and over-development.

25. At the commencement of proceedings we attended the residences of 3 and 3A Pacific Street, and 1 and 7 Antrim Street, and heard oral submissions from Mr Gherashe of 7 Antrim Street, Steven Layman further representing Mr Gherashe, and Gerry Reitsma of 3A Pacific Street. These submissions reinforced the issues raised in written submissions, with view loss being the primary concern.

Issues and evidence

26. In his opening statement, Mr Fan for the Respondent confirmed that, based on the amended plans, the remaining contentions as per the Amended Statement of Facts and Contentions as filed on 24 December 2020 (Exhibit 1) are:

• Contention 1.1 – unacceptable bulk, scale and density;

• Contention 1.2 – unacceptable internal amenity impacts;

• Contention 1.3 – maintenance of views and vistas; and

• Contention 1.4 – unacceptable streetscape and character.

Mr Fan confirmed that Contention 2 – Insufficient information, is resolved by the photomontages that were tendered as exhibits E and F.

27. To avoid repetition, contentions 1.1, 1.2 and 1.4 are discussed below under ‘unacceptable bulk, scale and density’ and contention 1.3 discussed under ‘view loss from neighbouring properties’.

Unacceptable bulk, scale and density

28. In the Respondent’s contentions, the unacceptable bulk, scale and density of the proposal creates overall adverse impacts on the amenity of neighbouring residences, and within the proposal itself. Subsequently, they contend that the objective of KLEP cl 4.1A(1), “to encourage housing diversity without adversely impacting on residential amenity”, is not achieved by the proposal.

29. Mr Fan contends that the unacceptable bulk of the building is caused by three things:

• a breach of the height plane, as established by KDCP chapter 2 section 6;

• the clerestory elements that project above the roof of each dwelling; and

• an overbearing scale resulting from detailed building design and lack of separation.

30. Mr Fan further contends that the resulting adverse impacts are: view loss from neighbouring residences; visual impacts of the development when viewed from outside the site, and; poor amenity within the development. He states that the cumulative effect of these impacts is a design that is not responsive to the site and has not incorporated adequate measures to mitigate the issues arising from the design.

31. View loss from neighbouring residences is discussed in more detail in this judgement below as it was considered a contention in itself, however I will discuss the visual impacts of the development when viewed from outside the site, and poor amenity within the development here.

32. The Applicant accepts that, pursuant to chapter 2 section 6 of the KDPC, a breach of the height plane occurs in this development. KDCP states:

“Section 6 - Building Height Plane - Low Density Development Only

No part of the structure (excluding the eaves, fascia and roof gutter to a maximum width of 600mm) within the built upon area of the site shall exceed a building height plane projected at an angle of 45^o over the actual land to be built upon from a vertical distance of 5m above the existing ground level at any boundary of the site.”

33. This breach occurs at the northern (lower) end of all three buildings, to the internal boundaries between lots A and B, and between lots B and C. This is illustrated in the Joint Report of Expert Witnesses (Joint Report) (Exhibit 3) at figures 1 & 2 and further on the Building Envelope – North East View within Exhibit B. These illustrations collectively illustrate that the breach is caused by the eaves of each dwelling along the aforementioned boundaries, and also by the clerestory elements and that the breach only occurs on boundaries that result from the subdivision, not boundaries shared with neighbours.

34. Paul Grech, the planning expert for the Respondent, contends that although not occurring on the boundary between the subject site and 46B Gipps Street, the breach of the height plane will be visible from this neighbouring dwelling and contributes to an overbearing scale.

35. In response, David Waghorn, the planning expert for the Applicant contends that the breach of the building height plane results in no additional adverse impacts on the bulk and scale of the development, as the breaches are only visible from the dwellings to the south of the site (uphill). He further suggests that, as demonstrated by the photomontages in Exhibit F, the perceived bulk and scale from these vantage points is acceptable as the buildings are low in scale, and have roofs that are recessive in terms of form and colour.

36. Mr Waghorn further submits that, as the breach occurs to an internal boundary and the building complies with the DCP building envelope controls along the boundary of 46B Gipps Street, the bulk and scale of the dwelling is as anticipated by the planning controls. Furthermore, he states that the rear (southern) garden of 46B Gipps Street is more of a utility courtyard and that the primary open space is to the northern side of the building, facing the view to Bombo Beach. From this, he concludes that the bulk and scale of the development will have negligible impact on 46B Gipps Street.

37. It is noteworthy that Phillip Pollard, the Visual Impact and Design Expert for the Respondent, concurs that the impact of the breach of height plane on view loss is relatively minor, but that further articulating the balconies and increasing the landscape area between buildings could assist in mitigating the perceived bulk and scale, as well as the poor internal amenity for the dwellings in the proposed development.

38. The Respondent further submits that the issue of bulk is exacerbated by the clerestory elements that project above the roof of each dwelling in their entirety, not just the portions that breach the height plane. These clerestory elements are shown on the elevations contained within Exhibit B. Mr Fan contends that these elements add to the visual impact of the proposed development when viewed from Pacific Street, Bombo Beach, and neighbouring properties.

39. At the site visit, due to the actual photomontage location being difficult to access, we viewed the site from a suitable alternative location adjacent to Bombo Beach and I was directed to apply an interpretation of the view impacts displayed in the photomontage at page 8 of Exhibit F. The Respondent submits that this photomontage demonstrates an unacceptable density and lack of landscape in the proposal, resulting in a localised visual density that is not consistent with the objectives of the DCP. On this issue I accept the evidence of the Applicant that, although the development is visible from Bombo Beach, it is entirely compatible with existing buildings on the hillside and is neither visually jarring nor out of context.

40. Regarding the view from Pacific Street, the Respondent states that the south-eastern elevation of Unit A presents poorly and adversely impacts the streetscape due to its high fenestration, poorly located services and lack of street presentation. On this matter I also accept the evidence of the Applicant, which is that, although there are some detracting elements, the front door and open balcony of Unit A provide sufficient address to Pacific Street, and that the overall streetscape will not be adversely impacted by the building presentation in this location.

41. In his evidence, Mr Grech states that the excessive bulk of the development is further exacerbated by the height of the buildings above ground level, and in particular the large balconies that create an overbearing scale when viewed from the rear garden of the dwelling at 46B Gipps Street. This neighbouring dwelling is located to the north of the site, down-slope, and the view impacts would be from a rear, south-facing utility courtyard.

42. Mr Grech and Mr Pollard further submit that the large balconies on each proposed building will not only impact the scale of the development from 46B Gipps Street, but will also result in poor solar access to the lower level bedrooms and privacy impacts between dwellings in the new development.

43. With respect to the issue of bulk and scale, I accept the submission of the Applicant that the proposed buildings are well below the DCP height control, and with the exception of the height plane breach, are within the building envelope controls of KDCP.

44. I further accept the Applicant’s submission that the visual impacts of the development from both Pacific Street and Bombo Beach are acceptable.

33. Regarding the visual impact of the proposed development on the neighbouring 46B Gipps Street, I accept that the proposed dwellings do not overshadow this neighbouring dwelling, nor do they impede the primary northern view from this property in any way, being positioned on the opposite side to the view. I further accept, based on the observations I was directed to make on site, that this rear courtyard forms more of a utility space and is not the primary open space for the residents of 46B Gipps Street. However, I also accept that the landform and proximity of the proposed buildings to the boundary with 46B Gipps Street, and in particular the large-scale, contiguous balconies, may result in an overbearing scale when viewed from this neighbouring courtyard, and that this may prevent its use for anything other than the current utility space.

34. I further accept the Respondent’s submissions that the proposed balcony size adversely impacts the solar access to lower level bedrooms in the proposed dwellings, and privacy between dwellings. I note that this is not a non-compliance as such, but is considered on merit by the Respondent’s experts as a poor amenity outcome.

35. Regarding the clerestory elements, given where they are located on the roofs, I do not accept that these elements create any significant adverse impact on 46B Gipps Street, nor for the reasons above do I accept they create any significant visual impact when viewing the development from Pacific Street or Bombo Beach. The clerestory elements are however discussed further in the context of view loss from neighbouring properties, below.

View loss from neighbouring properties

48. The issue of view loss is raised by both the Council and all three objectors. View loss from 3 Pacific Street, 3A Pacific Street, 1 Antrim Street and 7 Antrim Street were the subject of extensive observation from each property during the site view, as well as submissions from all residents except for 1 Antrim Street.

49. I note that Mr Gherashe, the resident and owner of 7 Antrim Street, questioned the voracity of the photomontages, however neither party contends this and exhibits E and F are accepted without objection.

50. The experts agree and, based on exhibits E and F and the observations I was directed to make on site I am satisfied, that the impacts of the development on views are most significant from the properties 3 and 3A Pacific Street.

51. KDCP chapter 2, section 5- Maintenance of Views and Vistas provides guidance on the assessment of view loss. The objectives of KDCP section 5 are:

“ To maintain view sharing principles though the development and redevelopment of areas.

To ensure that where practical new development is designed and sited not to significantly alter views (including water and/or escarpment views).

To ensure that primary private views are maintained through the addition of new development.

To retain views to and from the water.

To protect conserve and maintain the landform of the municipality

To limit potential for large bulky housing and development

To encourage sensitive siting of housing.

To maintain or enhance significant public view corridors and other opportunistic views available from the public domain.”

52. With reference to KDCP chapter 2, section 5, the views in contention are private views enjoyed from dwellings by their occupants, which may be considered as both primary views- from frequently used living areas such as lounge rooms, living rooms and family rooms- and secondary views- from bedrooms or service areas.

53. KDCP chapter 2, section 5 states, inter alia:

“The impact on views from living areas and kitchens is more significant than from bedrooms or service areas.

There will be instances where views will unavoidably be affected by new development. From a design viewpoint, the preservation of existing primary views from an adjoining dwelling would be of more importance than secondary views. These primary views should, to the maximum extent possible, be preserved.

New development should maximise views available to frequently used living areas within new dwellings without causing significant loss of views, and in particular primary views, enjoyed by existing residents, or significant loss of important vistas available from public places.”

54. The relevant controls under KDCP chapter 2, section 5 are:

“C6 Any development in Kiama should incorporate view sharing principles into the design and siting of development to ensure that where possible with that existing view lines are not detrimentally impacted.

C7 Development should maintain where possible of views from public places.

C8 Development should ensure, where possible, that there is no unreasonable loss of existing view lines from existing development.

C9 No one dwelling should be sited to maximise the views for its occupants to the exclusion of nearby resident or neighbours.

C10 Building design should have regard to the topography of the site and avoid unnecessary bulk or alteration of natural ground levels.

C11 Where there is a potential for view loss Council may require a maximum building height of less than the maximum allowable for part of the proposed building to ensure view sharing.

C12 Council may consider varying setbacks and building lines where variance would result in a positive view sharing outcomes.

C13 Reference is to be made to principles handed down in the Land and Environment Court with regard to view sharing.”

55. Both parties agree, and I accept, that the most relevant principles to apply with reference to KDCP control C13 are those established by Roseth SC under Tenacity Consulting v Warringah (2004) 134 LGERA 23 [2004] NSW LEC 140 (Tenacity). The steps outlined in Tenacity subsequently form the basis of the experts’ assessment of view loss in this case.

56. In considering the severity of view loss, Roseth SC sets out the following principles in Tenacity at [26]-[29].

“[26] The first step is the assessment of views to be affected. Water views are

valued more highly than land views. Iconic views (eg of the Opera House,

the Harbour Bridge or North Head) are valued more highly than views

without icons. Whole views are valued more highly than partial views, eg a

water view in which the interface between land and water is visible is more

valuable than one in which it is obscured.

[27] The second step is to consider from what part of the property the views

are obtained. For example the protection of views across side boundaries is

more difficult than the protection of views from front and rear boundaries. In

addition, whether the view is enjoyed from a standing or sitting position

may also be relevant. Sitting views are more difficult to protect than

standing views. The expectation to retain side views and sitting views is

often unrealistic.

[28] The third step is to assess the extent of the impact. This should be done

for the whole of the property, not just for the view that is affected. The

impact on views from living areas is more significant than from bedrooms or

service areas (though views from kitchens are highly valued because people

spend so much time in them). The impact may be assessed quantitatively,

but in many cases this can be meaningless. For example, it is unhelpful to

say that the view loss is 20% if it includes one of the sails of the Opera

House. It is usually more useful to assess the view loss qualitatively as

negligible, minor, moderate, severe or devastating.

[29] The fourth step is to assess the reasonableness of the proposal that is

causing the impact. 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.”

57. With reference to the first step in Tenacity, all experts agree that the views to be affected are the northern views of Bombo Beach, Bombo Headland, and the associated bay.

58. The second step in Tenacity is to consider from what part of the property the views are obtained. It is noted that the experts, Mr Waghorn and Mr Pollard, disagree on the nuance of this method. Mr Waghorn states in the Joint Report (Exhibit 3) that whilst the photomontages (Exhibits E & F) provide an accurate indication of the direct views that are affected by the proposed development, view loss must be assessed beyond the extremity of the montage. As such, at the site views, I was directed to observe panoramic views further to the east and west from the living rooms and balconies of the affected dwellings.

59. In undertaking the third step in Tenacity, assessing the extent of the impact, I note that in addition to my observations at the site view, the photomontages provide a useful reference for the extent of impact. If we consider the concentrated view over the rooftop of the proposed development, even the worst affected residence at 3 Pacific Street retains a reasonable portion of Bombo Beach, the bay and, Bombo Headland in full, from both a seated and standing position in their living room. From this, I accept the Applicant’s submission that the extent of the view loss created by the proposed development is, at worst, moderate and that view sharing principles have been considered in the design of the proposed development.

60. However, the fourth step in Tenacity is to assess the reasonableness of the proposal that is causing the impact. The proposed development is compliant with all controls except for the breach of the height plane under KDCP chapter 2, section 6. Figure 4 in the Joint Expert Report illustrates that part of this breach is caused by the clerestory elements of units A and B. I further note that in all impacted views, the view loss is exacerbated by the inclusion of the clerestory elements.

61. Under cross examination, Mr Waghorn was unable to provide adequate justification for the clerestory elements in terms of solar access, cross ventilation or other critical amenity or building function. On the basis of this evidence, Mr Fan submits that in applying the controls set out in KDCP chapter 2, section 5 that there is no reasonable justification for the retention of these elements, noting their consistent impact on views from all neighbouring dwellings to the south due to their projection over and above the actual roof level of each proposed dwelling.

62. From the above evidence I conclude that, although the view impacts of the proposed development do not provide sufficient grounds to dismiss the appeal, the view loss can be mitigated for all impacted residences through the deletion of the clerestory elements on all three proposed dwellings, and a more equitable level of view sharing achieved.

Conditions of consent

63. The Respondent proposes three deferred commencement conditions to which the Applicant objects. Below lists my reasons and decision in relation to the modifications requested through these deferred commencement conditions, however I am not satisfied that the mode of deferred commencement condition is the appropriate manner in which to achieve the necessary changes. As such, I require the drawings to be amended prior to final orders being given.

64. The first proposed deferred commencement condition pertains to the deletion of the clerestories across all three units. For the reasons above, I accept that the modification requested in this condition is reasonable.

65. The second proposed condition requires the upper floor balconies of units B and C to be amended to provide 2 separated balconies for each unit. That part of the proposed balcony adjacent Bedroom 1 in both units shall be reduced to a depth of 1m, separated from the residual main balcony by 1m, and set-in from the eastern elevation of the building by 1m. For the bulk, solar access, and privacy reasons outlined in this judgement, I accept that this condition is also reasonable.

66. The third proposed condition requires the internal layout and balcony design of unit A to be amended to reflect the sketch plans included as attachment E in the Joint Experts’ Report. I note that this condition will necessitate substantial re-planning of the floor plan and elevations of unit A.

67. I accept, given they are discreet architectural elements, that the clerestory elements can be deleted and the balconies modified in the manner set out in the first two proposed deferred commencement conditions, and that the outcome of these modifications is both final and certain. However, the drawings provided at attachment E in the Joint Experts’ Report are in sketch form and are not resolved building layouts. They do not provide certainty of the outcome and may result in the design of Unit A being significantly different from that which the consent authority purportedly approved. For this reason, and also due to my above finding in relation to the acceptable view of the development from Pacific Street, I do not accept that this modification is either final or certain to the required extent, nor do I accept that the requested design change is necessary.

Findings

68. Having considered the evidence regarding bulk, scale and density, I accept the Applicant’s view that the proposed development will not result in any unacceptable visual impacts when viewed from Bombo Beach, nor from Pacific Street. On this basis, I consider the modification requested through proposed deferred commencement condition 1(c) unnecessary and unjustified.

69. However, I also accept the Respondent’s view that the scale and design of the proposed buildings will have an unacceptable adverse impact on the courtyard of 46B Gipps Street, and that this is particularly a result of the large scale, contiguous balconies. I further accept that these balconies will create privacy impacts between the new dwellings, and that they will adversely impact the solar access to the lower-level bedrooms in the proposed dwellings. From this, I conclude that the modifications requested through deferred commencement condition 1(b) are reasonable and will mitigate these adverse amenity impacts to a satisfactory level.

70. Having considered the evidence on view loss from 3 Pacific Street, 3A Pacific Street, 1 Antrim Street and 7 Antrim Street, I am satisfied that through the application of the principles in KDCP chapter 2, section 5, although the proposed development does result in some view loss for existing residents, it achieves an acceptable level of view sharing in accordance with the principles established by Roseth SC in Tenacity. However, I also accept the evidence of the Respondent that the inclusion of the clerestory elements on all three proposed dwellings contributes unnecessarily to this view loss, and is contrary to the objectives of KDCP chapter 2, section 5, and KDCP controls C6, C8, C10, and C13. I further accept that these clerestory elements provide no critical amenity or building function, and that the modifications requested in deferred commencement condition 1(a) are reasonable in achieving both the objectives and controls of KDCP chapter 2, section 5.

71. I am satisfied that, with the application of the Council’s proposed modifications as described in deferred commencement conditions 1(a) and (b), the proposed development satisfactorily achieves all relevant objectives of the KDCP and KLEP. I do not however accept that the modifications requested through deferred commencement condition 1(c) are necessary for the reasons given.

72. For the reasons given, I intend to uphold the appeal and approve development application 10.2018.196.1 for the demolition of the existing dwelling and construction of three (3) dwellings and three (3) lot Torrens Title Subdivision at 5 Pacific Street, Kiama, as amended by my reasons for judgement.

Directions

73. The Court directs:

1. The applicant is to amend the architectural drawings to address the matters that have been proposed by the Respondent as deferred commencement conditions 1(a) and (b), in accordance with my reasons for judgement, within 7 days of these orders, and provide a copy to the Court and Council.

2. Within a further 2 days following receipt of the amended drawings, Council is to amend and file revised Conditions of Consent, reflecting the modifications and my reasons for judgement, in the template of the planning portal, to the Court.

74. Subject to these revisions being to the satisfaction of the Court I will then hand down final orders.

………………………….

Emma Washington

Acting Commissioner of the Court

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Decision last updated: 15 June 2021