Smyth Planning v Randwick City Council

[2004] NSWLEC 34

Land and Environment Court

of New South Wales

CITATION:

Smyth Planning v Randwick City Council [2004] NSWLEC 34 revised - 24/08/2004

PARTIES:

APPLICANT
Smyth Planning

RESPONDENT
Randwick City Council
.

FILE NUMBER(S):

11435 of 2003

CORAM:

Moore C

KEY ISSUES:

Development Application :-
View sharing
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1
Randwick Local Environmental Plan 1998
Multi Unit Housing Development Control Plan 2000
.

CASES CITED:

Mison v Randwick City Council (1991) 23 NSWLR 734 ;
Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46;
Zhang v Canterbury City Council (2001) 115 LGERA 373;
Tenacity Consulting v Warringah [2004] NSWLEC 140;
.

DATES OF HEARING:

4 March 2004

DATE OF JUDGMENT:

04/20/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Pickles, barrister
INSTRUCTED BY
Spiegel & Associates

RESPONDENT
Mr M Fraser, barrister
INSTRUCTED BY
Bowen & Gerathy

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11435 of 2003

Moore C

20 April 2004

Smyth Planning

Applicant

v

Randwick City Council

Respondent

Introduction

1 This is an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 ("the Act"). The appeal is against the imposition of a deferred commencement condition by Randwick City Council ("the council") on its approval of a residential apartment complex proposed to be built between Daintrey Crescent and Dudley Street at Randwick. The property is known as 14 – 16 Daintrey Crescent and 4 Dudley Street. The proposal is for two linked buildings, one facing Dudley Street but running between Daintrey Crescent and Dudley Street and the other being confined to facing Daintrey Crescent. The development would contain 18 residential units accompanied by 34 car parking spaces. The site is zoned residential 2(c) and the development proposed is permissible with consent. The matter was heard at an on-site hearing which concluded at 1630 hrs when I reserved my decision. Agreed notes of the evidence given during the inspection of the site and of objectors' properties was subsequently filed and, by agreement, treated as part of the record.

2 The effect of the deferred commencement condition would have been to require the applicant to lower the ridgeline of the northern element fronting the Daintrey Crescent by an effective 2 m with the southern element being lowered, by a lesser amount, but to the same effective height.

3 At the commencement of proceedings, I discussed with Mr Pickles and Mr Fraser, counsel for the applicant and the council respectively, my concerns that the proposed deferred commencement condition offended against the decision of the Court of Appeal in Mison v Randwick City Council (1991) 23 NSWLR 734 in that it did not provide certainty as to the outcome. My concerns in this regard were reinforced by what I understood to be the agreed position that to satisfy the requirement to lower the roof height of the development as proposed by the council would necessitate significantly more than minor adjustments to the plans as presently proposed for approval.

4 In addition, the council imposed a requirement that plans satisfying this height reduction were to be submitted to the council within three months of the date of consent. The applicant also appealed against this condition.

Disposition of the appeal

5 As a consequence of the concerns I held as to the impermissibility of the proposed deferred commencement condition, I indicated to the parties that the courses which I considered that were open to me were, following a formal upholding of the appeal against the deferred commencement condition, either:

• to approve the development in terms of the original consent with the deferred commencement condition deleted; or,
• if I was satisfied that modification to the design was required, to make a decision on the matters of principle that were involved but not make any formal orders without providing the parties an opportunity to address me on what should be the nature of the orders to be made.

The contested conditions

6 The principal contested condition reads:

The height of the proposed building fronting Daintrey Crescent (Daintrey block proposed at RL 70.75 and RL 70) shall be lowered such that the maximum RL shall be 68.75 m.

7 The council suggested, in the condition, that this might be achieved by one or more of the following options:

• excavating the development further into the ground; and/or
• changing the roof pitch; and/or
• having a flat roof

8 The condition also required that:

Amended plans detailing compliance with this condition shall be submitted for approval by the Director, Planning and Community Development. Evidence required to satisfy these conditions must be submitted to Council within three months of the date of this consent.

9 The reason the council proposed to impose this condition, which was not a part of the council officer’s assessment report, arose from concerns held by the council at the loss of views from a number of residences on Daintrey Crescent in the vicinity of the site and from the upper north western portion of Daintrey Crescent itself.

10 As noted below, these concerns about views were reflected in a number of public submissions made to the council objecting to the proposal.

Planning documents

11 The first relevant planning document is the Randwick Local Environmental Plan 1998 ("the LEP"). The second is the Multi Unit Housing Development Control Plan 2000 ("the DCP").

12 In addition, as the FSR proposed exceeds that which would be permitted by compliance with the LEP, an objection pursuant to State Environmental Planning Policy 1 ("SEPP 1") has been made to compliance with the FSR control in the LEP.

The issues

13 The dominant issue in this appeal relates to loss of views. These are views of the ocean and of Dolphins Headland (being the headland at the northern end of Coogee Beach) together with district views of the valley between Daintrey Crescent and the coastal escarpment running north from Dolphins Headland. A memorial has been erected on Dolphins Headland to commemorate and remember a number of members of the Coogee Dolphins football team who lost their lives in the Bali bombings.

14 Objections were received by the council concerning the view loss issue from 12/12 Daintrey Crescent; 3/18 Daintrey Crescent; 9 Daintrey Crescent; unit 1 and unit 4 in 7 Daintrey Crescent and 5 Daintrey Crescent.

15 A number of objections also raised concerns about the loss of views from Daintrey Crescent, itself, in the vicinity of the corner in the upper north western part of the street.

16 In addition to the issue of view loss, the council sought to call in question, in these proceedings, its own earlier decision to sustain the SEPP 1 objection to compliance with the FSR control.

17 A number of the resident objectors raise the issue of bulk and scale. However, for the purposes of these proceedings, the question of bulk and scale principally, in fact, arises in the context of consideration of view loss.

The SEPP 1 objection

18 The questions which need to be addressed in consideration of the SEPP 1 objection to the FSR requirements being complied with were set out by Lloyd J in Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46. These questions are:

First, is the planning control in question a development standard?
Second, what is the underlying object or purpose of the standard?
Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act?
Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?
Fifth, is the objection is well founded?

19 Clause 32 of the LEP sets a maximum FSR of 0.9:1 for this zone. As this requirement is contained in the LEP, it is a development standard.

20 The LEP contains a statement of the purpose for having FSR provisions in its terms. The description of the purpose says:

To establish reasonable upper limits for development in residential, business industrial and special uses zones through a limit on the amount of floorspace that can be provided. This will help to reduce the potential for adverse impact on nearby and adjoining development while still providing for reasonable levels of development and redevelopment.

21 The applicant's objection pursuant to SEPP 1 against being required to comply with the FSR standard was couched in terms that it was both unnecessary and unreasonable to comply with the standard.

22 However, the test contained in SEPP 1 is in the disjunctive rather than the conjunctive. Thus, if I am satisfied that it is unnecessary to comply with the standard, I need not consider whether it is unreasonable to require compliance.

23 In the present instance, although Mr Fraser pressed that I should, in this decision, not sustain the SEPP 1 objection, the council officer’s assessment dealt with it in some detail and, as a consequence, was satisfied that it was appropriate to sustain the objection.

24 Ms Laidlaw gave evidence that the difference between the actual floorspace and the allowable floorspace essentially amounts to floorspace below the original ground level of the site with this floorspace effectively filling the gap between top of the car park and the original natural ground level.

25 The council officer’s report concluded:

manipulation of the building to effect strict compliance with the FSR standard would not necessarily result of the building that would appear any less bulky from either streetscape. The minor aboveground exceedance in FSR is not considered significant and removing this area to ensure compliance not necessarily result of any greater amenity to adjacent neighbours nor would it result in a better design.

26 As a consequence of this evidence, which was not contradicted by any expert evidence of the council in these proceedings, I am satisfied that it is unnecessary to require compliance the FSR standard in the LEP. As I have been satisfied on this aspect of the tests, I do not need to consider whether it is unreasonable to require compliance.

27 I am also satisfied that the SEPP 1 objection is well founded because, in addition to there being no contribution to bulk and scale by the exceedance, permitting the exceedance will also assist attaining the objective of the Act concerning the economic use of land whilst, at the same time, reducing pressure to build to the maximum height of a building envelope allowable under the DCP.

Consideration of the sole bulk and scale issue

28 The only possible issue of bulk and scale which did not relate to view loss arose from the evidence of the residents of 3/18 Daintrey Crescent who expressed concerns at the loss of sunlight to their dining room and to what appeared to be their second bedroom. This specific objection can be disposed of shortly.

29 It was the agreed evidence of Mr C King and Ms D Laidlaw, the town planning experts retained by the parties, that the separation between the proposed building and 18 Daintrey Crescent is such that relevant standards for solar access to these windows are complied with entirely.

30 What was available to be seen from an examination of the present plans together with the height poles erected on the site and observed during the view from these premises leads me to accept, unreservedly, the accuracy of this evidence. As a consequence, therefore, I have concluded that there is nothing arising from these concerns which would warrant modification, let alone refusal, of the application.

31 It was also the agreed expert evidence that any reduction in height of the proposal would not have any impact on preserving views from the kitchen of this unit. Neither expert considered that this was inappropriate. In this regard, therefore, the same considerations apply as are relevant to the loss of views from 1/7 Daintrey Crescent discussed below and with the same conclusion.

The planning context for assessment of losses views

32 The height limit for this zone is contained in clause 33 of the LEP and provides that the maximum height for a building, other than a dwelling house, in this zone is 12 m vertically from any point on ground level. There is no contest between the parties that the applicant's proposal complies, entirely, with this requirement and it is, in fact, below the maximum permitted height.

33 The council case is that, in consideration of the aims of the LEP which are relevant in its opinion, combined with the zone objective for such development together with the provisions of the aims of the DCP and the specific provisions in cl 4.3 of the DCP relating to view sharing that:

• the applicant's proposal requires modification to achieve acceptability; and
• the modification required is to lower the maximum height at the Daintrey Crescent side by 2 m with the whole of the building facing Daintrey Crescent conforming to that maximum height.

34 Although I was taken a number of the aims of the LEP, those which are primarily relevant (as conceded by Mr Fraser), are:

• to ensure the conservation of the environmental heritage and aesthetic character of the City; and
• to promote, protect and enhance the environmental qualities of the City.

35 The relevant zone objective contained in clause 12 reads:

to enable residential development in a variety of medium density housing forms where such development does not compromise the amenity of surrounding residential areas.

The relevant provisions of the DCP.

36 In cl 1.1 Introduction and Aims, the relevant provision is contained in the second dot-point under the heading 3 Ensure Neighbourhood Amenity which reads:

Minimise adverse impacts of development on surrounding land, including the loss of amenity.

37 Then, setting out the basis upon which the DCP should be utilised, the DCP notes, with respect to performance requirements in the various parts of the DCP (which include Part 3 Building Design and Part 4 Environmental Controls) that the performance requirements are design based performance measures which the design construction of new development are expected to achieve. This performance-based approach allows for greater innovation in building design construction while ensuring Council's objectives are achieved. They are an extension and interpretation of the aims and objectives [of the LEP].

38 In these proceedings, the tension lies between the height proposed by the applicant and the impact of the views from properties in the vicinity and from a nearby public place.

39 The relevant provisions of the DCP, therefore, are those contained in cl 3.2 Height and cl 4.3 View Sharing. The relevant elements of cl 3.2 Height of the DCP are:

• 3.2.1, the second objective of which is to Minimise the impact of development on a adjoining and nearby land; coupled with
• 3.2.2 of the explanation which reads Building height is also a major factor in relation to the degree of overshadowing and potential loss of privacy and views.

40 The DCP sets out the relevant provisions in clause 33 of the LEP including importing the provision setting the maximum height for the present site as 12 m. A note appears to 3.2.3 in the following terms:

• The maximum permissible heights in the LEP are not “as of right controls”.
• The achievement of maximum heights depends on how the proposed development meets the objectives and design criteria of all sections of this DCP.

41 The relevant elements of cl 4.3 view sharing are:

4.3.1 Objectives

Minimise the obstruction of views by new development from adjoining buildings and public places.

4.3.2 Explanation.


Many areas of Randwick favoured by extensive views of the City and ocean. Other views focus on local, natural and man-made features.

View sharing requires design which considers the preservation of existing views from neighbouring property while allowing development (which are other Council controls and guidelines) to take advantage of available views.

42 Clause 4.3.3 calls up the aims and the objectives of the LEP relevantly, in this case, for the residential 2(c) zone.

43 In cl 4.3.4 of the DCP controls, Performance Requirement 2 reads:

Development minimises effects on views and demonstrates steps that have been taken to mitigate view loss, in particular view loss of significant features such as the ocean, coastline, nearby open space areas and significant landmarks or buildings.

44 As to the emphasis I should give to the DCP, Zhang v Canterbury City Council (2001) 115 LGERA 373 deals, inter alia, with the issue of consideration of relevant provisions of a DCP in determining whether to grant development consent.

45 From what was said in Zhang by Spigelman CJ at para 75 on pp 386 and 387, three propositions emerge. First, although the Court has a wide ranging discretion, the discretion is not at large and is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, where, as is the case in this instance, there are no issues relating to compliance with the Local Environmental Plan. Thirdly, a provision so directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

46 Relevantly, in this instance, if a proposal does not meet the DCP’s requirements, the Court is not precluded in appropriate cases from granting consent, given a proper and genuine consideration of the DCP and having considered all other matters that are relevant under s 79C of the Act.

Principles to be applied to view sharing

47 The principles to be considered when there is a general statement concerning view sharing were recently set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140. The Senior Commissioner, relevantly, said:

24. Clause 61 of the LEP states that development is to allow for the reasonable sharing of views. It does not state what is view sharing or when view sharing is reasonable.

25. The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment.

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.

Application of the principles

48 Applying these principles to the present case requires consideration of two separate elements. The first is what, if anything, would be the impact of varying degrees of lowering requirements if they were imposed on the proposed development. The second is an assessment of the view loss which would be caused by the proposal on various adjoining or nearby properties and from the public domain.

The impact of requiring a height reduction on the proposed development

49 Evidence was given on behalf of the applicant that it would be possible to redesign the roof structure so as to effect an overall reduction in the height of the northern portion of the building of ~ .5 m.

50 However the evidence was also that any greater reduction would require either the elimination of a floor level of units or further significant excavation to permit sinking of the entire structure further into the site.

51 Further, the evidence was that nothing could be achieved if those rooms which have a 3 m ceiling height were reduced to 2.7 m as such a reduction would, in fact, have no impact on the overall height.

52 If a reduction in overall height were achieved by sinking the building further into the site, it was obvious from the inspection that this could only be achieved by a significantly adverse impact on or possible elimination of the views which would otherwise be achieved from a number of units in the development. This will occur as a consequence of the perspective from these units to the ocean being blocked by the ridgeline of the existing flat building to the east.

53 There was only limited agreement in the joint evidence of Mr King and Ms Laidlaw of the extent of the impact on water views from the proposal if the 2 m height reduction sought by the council were to be required. Ms Laidlaw was of the opinion that six units would lose water views at standing level whilst Mr King was of the opinion that only four units would lose such views.

The factual position concerning view loss from other properties and the public domain

54 The objectives in cl 4.3.1 of the DCP refer to the minimisation of view loss from adjoining buildings rather than from adjoining residences. The provisions of cl 4.3.3 make it clear that these apply in the two multiunit residential zones which are not comprehensive redevelopment zones.

55 Although DCPs and similar planning documents are not drafted by lawyers and thus should not be subject the same strictness of construction as would be applied to a statute, there is also an appropriate presumption that those drafting such documents intended their words to have their ordinary English meanings. In the present context, the element of the objective in cl 4.3.1 quoted above does not refer to the dwellings but to buildings. In this case, 7 and 9 Daintrey Crescent are clearly within the settled principles of what constitutes an adjoining building for the purposes of interpreting that phrase.

56 The dwelling at 5 Daintrey Crescent is not an adjoining building for the purposes of interpreting that phrase. The impact on this dwelling does, however, require assessment of its view loss under the more general provisions of s 79C of the Act and this consideration arises as if the broadly stated DCP provisions discussed in Tenacity Consulting (and similarly present in the DCP applicable in this case) were applicable as these provisions are no more than statement of an underlying general planning principle.

57 Thus, consideration of view impact in the present proceedings falls into two distinct categories.

58 The first of these relate to the proposed total extinguishment, accepted as appropriate by the council, of the ocean views from 1/7 Daintrey Crescent.

59 The second category requires the dealing with the acceptability or otherwise of the degree of modification proposed to the views from 5 Daintrey Crescent, 4/7 Daintrey Crescent, 9 Daintrey Crescent, 12/12 Daintrey Crescent and the north-west corner of Daintrey Crescent.

Unit 12/12 Daintrey Crescent.

60 During the course of the site inspection, when in 12/12 Daintrey Crescent, I was able to observe a height pole erected on the site which depicted the north-eastern corner of the Daintrey Crescent buildings proposed to be erected on the site. It was significantly set further back toward Daintrey Crescent than the building presently erected on the site.

61 I am satisfied that this setback, which would open up additional views from the kitchen and the living area of 12/12 Daintrey Crescent (although blocking views from the two bedrooms of that unit, to at least a considerable extent), would, in planning terms, provide significant additional amenity benefits to the residents of 12/12 Daintrey Crescent.

62 As discussed in the general principles above in Tenacity Consulting, views from living areas of dwellings are to be accorded a significantly higher imperative for protection or enhancement than those from bedroom areas.

63 In addition, the enhancement of views from kitchen areas is also more significant than any blocking of views from bedroom areas.

64 Therefore, there would be no basis to refuse or acquire modification to the present proposal as a consequence of its relationship to 12/12 Daintrey Crescent.

The public view from Daintrey Crescent.

65 During the course of the inspection, Mr Kutner, a local resident, showed me a photograph he had taken at approximately 6:40 AM that morning of the view of the sunrise over the horizon when looking down the Daintrey Crescent from its crescent in the north-west. Although it was intended that this photograph be formally tendered and the applicant made no objection to this course, its tender was subsequently inadvertently overlooked due to the time pressures during the remainder of the proceedings.

66 However, there was no dispute is to the accuracy of the photograph and to its depiction of the fact that, if the development were constructed to the presently proposed height, a pedestrian at the relevant location in Daintrey Crescent would lose the view of the ocean horizon and, as a consequence, would not have been able to observe the sun arising out of the sea - at least at this time of the year.

67 However, this portion of the street also has extensive district views and would retain ocean views to the north although losing its views of the headland and the adjacent commencement of the return of the coast toward Coogee Beach, to the south of this headland.

68 Therefore, there would be no basis to refuse or acquire any significant design modification to the present proposal as a consequence of this impact. However, I note that the redesign of the roof which will be required will provide some further amelioration and may possibly retain a view of the horizon - dependent on eye height of the observer.

5 Daintrey Crescent.

69 This building is a substantial federation style two-storey dwelling with a swimming pool in an elevated courtyard on the northern side of the property. An outdoor entertaining area incorporates the swimming pool and a substantial space where an outdoor dining setting is located. The upper levels of the dwelling which, although not inspected, contain bedroom areas and have extensive views which will not be impacted by the proposal.

70 The impact of the proposal from the outdoor dining area will be to obstruct part of the view to the ocean although, as pointed out on behalf of the applicant, that view is already partially obstructed by street cables. The outdoor dining area would retain some ocean views to the north of the proposal and would retain extensive district views and views of the Bondi Junction skyline to the north or north-west. Therefore, there is no basis to refuse or acquire any design modification to the present proposal as a consequence of this impact.

Unit 1/7 Daintrey Crescent.

71 It was obvious from the inspection and agreed by the experts that all ocean views from this unit would be lost if either the original application or a development with the council's proposed height reduction requirement was constructed. As a consequence, on either the applicant's case or the council's case, views from this unit of the ocean would be lost in their entirety.

72 With respect to this extinguishment of the views from this unit, Mr King and Ms Laidlaw provided an agreed statement of evidence dealing with this. They have jointly concluded that this complete extinguishment is both appropriate and consistent with the provisions of the DCP.

73 As a consequence, in light of the agreement between experts supporting complete extinguishment of the views of unit 1/7 Daintrey Crescent, it is necessary for me to consider whether or not such extinguishment is, in fact, properly consistent with the provisions of the DCP and the application of the Tenacity Consulting principles.

74 First, I conclude that the use, in the DCP, of the words adjoining buildings rather than adjoining residences does provide a basis upon which discrimination within a building is permissible. I infer that this is also the basis for the position taken by the expert witnesses.

75 What is envisaged for this unit is not view sharing but view elimination. Although the view to be lost from these premises is undoubtedly a significant one, I am satisfied that, even if some further design modification is achievable as I envisage might be possible, such modification is not likely to retain any of the ocean view from this unit.

76 To require preservation of some of the views from this unit would, necessarily, involve a radical reduction in height of an already height compliant proposed development. I accept that this is not appropriate and that the agreement expert witnesses that this view elimination is acceptable under the circumstances is one in which I should concur.

Unit 4/7 Daintrey Crescent and 9 Daintrey Crescent.

77 Some amelioration to the view loss from each of these premises will be achieved through the ~ .5 m reduction in roof height which can be achieved without impacting on the integrity of the design or the amenity of any of the proposed units.

78 The issue which needs to be determined is whether some further amelioration should be required. In each instance, a significant element for the occupants of each of the premises is the enjoyment of the views from a sitting position. In addition, consistent with the first step in the Tenacity Consulting process, it is significant that the views which are to be adversely impacted are not merely water views but include views of the Dolphins Headland - which now has some local significance as a consequence of the memorial erected on it. One of the residents of 9 Daintrey Crescent indicated that this was of particular significance to him.

79 Consistent with the second of the steps in Tenacity Consulting, I note that protection of a sitting view from either of these premises to the extent sought by their owners may not be possible. However, a reasonable basis for determining whether there should be some significant modification to preserve more of the views from these premises, as envisaged by the council, and, if so, to what extent, is a matter which remains unclear from the present state of the evidence.

80 I do not consider, for the reasons set out in the conclusions below, that I have a sufficient basis upon which conclude whether or not there should be some further significant modification to the design to afford some further amelioration of this view loss.

Conclusions

81 Although I have upheld the SEPP 1 objection concerning FSR, this has had no effect on height of the building. The building remains, even with the FSR exceedance, within the permitted building height for the zone.

82 Prior to dealing with the issue of impact on views, I should formally indicate that I uphold the appeal against the requirement that any amend plans the finalised within three months of the date of consent. As a consequence, this element of the condition is deleted and the overall result will be finalised pursuant to the process outlined below.

83 Although there will be an adverse impact on a number of views, including the total extinguishment of views from unit 1 of 7 Daintrey Crescent, in conformity with the principles of view sharing set out above in the extract from Tenacity Consulting, some impact on views will necessarily result is a consequence of the council's height controls for the site.

84 I am satisfied that the impacts of the proposal on views from the public domain and from 5, 1/7, 12/12 and 3/18 Daintrey Crescent are acceptable, when considered in a proper planning context, for the differing reasons set out above.

85 Had the council wished to prevent such impact on views, it could have sought to lower height limit for all or the relevant part of the zone so that present building heights could not have been exceeded or, if exceeded, only exceeded in a fashion which did not impact on any views from adjoining properties. It has not done so. Therefore, it is against the reasonable development expectation created by the council's planning framework that adjustment to the design of the proposal needs to be considered. There are two steps to this. The first step relates to design alterations which will have no practical impact on the internal amenity of the development. The second step requires my determination as to whether I should indicate that some impacting modification should be made to the development.

86 As to the first step, I am satisfied that the canvassed change to the proposed roof structure (which might have some adverse aesthetic impact, at least to some who beheld it) would provide some modest improvement to the view impact from a number of the affected locations. This adjustment should be required to the development proposed for the site.

87 The second step, after lengthy consideration of the state of the evidence which was available during the course of the on-site hearing, is one which I am not able to determine, to my satisfaction, without further exploration of impacts and design possibilities.

88 Although it was the uncontradicted evidence on behalf of the applicant that no further lowering of the proposal could be achieved without significant adverse impact on the proposal itself, I am not satisfied that, consistent with the fourth principal enunciated in Tenacity Consulting, it would be inappropriate to require any further reduction in height of the proposed development.

89 I have reached this conclusion for two reasons.

90 The first is that, given the limited agreement in the joint evidence of Mr King and Ms Laidlaw of the extent of the impact on water views from the proposal of a 2 m height reduction, I do not consider it appropriate to determine this issue without this matter being clarified. I therefore propose to direct that the experts confer, further, to endeavour to resolve this issue.

91 In addition, I am not satisfied that some design modification might not be available which could have some further ameliorating effect on view loss from either or both of 4/7 and 9 Daintrey Crescent. Such design modifications might include lowering of some part of the southern end of the northern portion of the development without lowering the totality of this portion. This might involve stepping across the site as well as down it. I therefore propose to direct that the applicant to consider whether some partial design modification might provide an ameliorating effect without having the degree of impact on the development envisaged by Ms Laidlaw.

92 It follows that I am inclined to require at least some further protection of the views from 4/7 and/or 9 Daintrey Crescent but am concerned to define precisely what would be the consequences of doing so. The parties should treat this position as a displaceable rather than a concluded one.

93 I do not consider that an extensive period of time need be involved in undertaking either of these processes. I therefore propose to set the matter down for a further one hour hearing before me at 9 AM on Tuesday 11 May to deal with these outstanding issues. At that time, the parties should expect that each of them have 25 minutes to respond on both matters at the conclusion of which I would propose to deliver a short extemporaneous judgment to finalise the matter of principle in this appeal. After that, I would propose to adjourn, for a further period (to be settled with representatives of the parties at that time) to enable any plan alterations or condition drafting to be dealt with.

Commissioner of the Court