Smyth Planning v Randwick City Council (No 2)

[2004] NSWLEC 430

Land and Environment Court

of New South Wales

CITATION:	Smyth Planning v Randwick City Council (No 2) [2004] NSWLEC 430 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:
CASES CITED:	Smyth Planning v Randwick City Council [2004] NSWLEC 34; Tenacity Consulting v Warringah 2004 NSW LEC 140; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	22 June 2004
EX TEMPORE JUDGMENT DATE :	06/22/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr A Pickles, barrister INSTRUCTED BY Spiegel & Associates RESPONDENT Mr M Fraser, barrister INSTRUCTED BY Bowen & Gerathy

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

22 June 2004

03/11435 Smyth Planning v Randwick City Council

JUDGMENT

1 COMMISSIONER: On 20 April 2004 I gave a preliminary decision in this matter: see Smyth Planning v Randwick City Council [2004] NSWLEC 34. This contained a number of elements which are of importance in dealing with the remaining issues in contention between the parties. The first of these is that at paragraph 27 of that judgment where I indicated that the necessary State Environmental Planning Policy 1 (SEPP 1) objection (which was required to be sustained as a threshold issue in these proceedings) was appropriate to be sustained and I noted that, as quoted from the relevant council officer’s report that the exceedance of the relevant controls did not add significantly to the bulk of the proposal nor have any streetscape impact.

2 I indicate, in terms of the issues with which I am presently dealing, that I am satisfied that the sustaining of the SEPP1 objection would also not have any impact on the views from 4/7 Daintree Crescent or from 9 Daintree Crescent.

3 Indeed, as noted in paragraph 32 of that decision, there is no contest between the parties that the applicant’s proposal complies with the relevant height limit contained in cl 33 of the Randwick Local Environmental Plan and that it is in fact below the maximum height permitted. The Development Control Plan (the DCP), which is the document that is of prime consideration in this phase of the proceedings, makes it clear, in a note to 3.2.3 of the DCP, that the maximum permissible height in the local environmental plan is not an as-of-right control but is one that is subject to consideration against the other tests contained in the DCP.

4 An issue arose in the context of this phase of the proceedings as to what might be the possible redesign of the roof structure to the northern end of the development and what might be achieved thereby.

5 It was my understanding, as set out in paragraph 49 of my earlier decision, that a redesign of the roof structure could effect an overall reduction in the northern portion of the building of .5 m. That has been the subject of some further argument before me this afternoon. I am satisfied by a careful consideration of the terms of what is described as “Option 3” in Exhibit K (which was the joint report of the planning experts tendered in the earlier phase of the proceedings), that what was envisaged was that 350 mm could be achieved by the reduction over part or all of the current ridge line of the northern section of the roof rather than 500 mm. Absent any formal evidence that would take me beyond that which is contained in Exhibit K, I am satisfied that I am obliged to rely on that as the underpinning element for the calculation of the proposed RL for the northern portion of the roof.

6 At the conclusion of the earlier judgment, I indicated that I was not satisfied that some design modification of the proposal was not available which could have some further ameliorating effect on view loss from either or both of 4/7 Daintree Crescent and 9 Daintree Crescent. I also indicated that that was a displaceable rather than concluded position.

7 The purpose of the hearing this afternoon has been to deal with that issue in the context of the Development Control Plan which provides, in s 4.3, the objectives, explanation and performance requirements for view sharing.

8 The objective is described, in 4.3.1, in the following terms, “Minimise the obstruction of views by new development from adjoining buildings and public places”, and the relevant performance criterion is set out in 4.3.4(FP2) and that is “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 spaces and significant landmarks or buildings”.

9 During the course of the day, there has been a further conference undertaken by the expert witnesses, Messrs Finn and King, on behalf of the council, and Mr Heenan, on behalf of the applicant.

10 An agreed statement with respect to view impacts was concurred in by all three of the experts (save that Mr Finn did not concur in the fourth of the points in that statement as to the reasonableness of the outcomes that are otherwise noted).

11 I propose to read the entirety of that statement into the terms of this decision.

12 The statement is with respect to an identified point derived from a survey undertaken on behalf of the council. The results of this survey were tendered today and relate to the sightlines from a number of positions in residences on the western side of Daintree Crescent across to a prism on a tripod at a local feature known as the Bali Monument (which is a monument referred to by a number of the witnesses in the proceedings as the Dolphins Monument – being a monument erected to commemorate the lives and remember the deaths of a number of members of a local rugby team who died in the Bali bombings). That reflector point has been referred to in Exhibit L as “the view”.

13 The document relevantly reads:

1. RL max to northern section of the Daintree building to be 70.4 to maintain the view in a sitting position. Experts agree 4/7 view sharing has been achieved in a reasonable way.
2. No 9 living room will maintain the view in a sitting position by having a maximum RL of 69.8 to the top of the parapet. Applies to southern section. Both of those RLs are excepting of any services that are located above the roofline.
3. In the entry/sunroom of No 9 you lose the view from the seated position but possibly still see the top of the monument/sculpture.

14 Mr Fraser, counsel for the council, submits to me that I should adopt the conclusions contained in a statement of evidence of Mr Finn that was tendered today which are contained in paras 37 and 40-42 of that document. Paragraph 37, in particular, contains a number of recommendations as to measures that could be undertaken by the applicant to achieve further reductions in height, one of which, at least, (that relating to floor-to-ceiling heights) may be an internal option within those alternatives.

15 As a consequence, Mr Finn concludes:

The critical decision, that is whether it is possible by increasing the effort of design to retain the seated views to the Bali monument from 4/7 and 9 Daintree Crescent Randwick without loss of proposed views to the Bali monument from the proposed development must be answered in my opinion in the affirmative.

It seems arbitrary to take the Bali monument as the determinate for calculating the measure of view sharing however for a scientific measure it is simpler to chose an item in the landscape. That the item is one which has cultural significance that happens to be located on the foreshore and beyond which ensures retention of valuable water views is convenient and it appears reasonable to apply the same standard of measurement for view retention to both the development and the adjoining developments.

Retention of the seated views to the monument in this instance I think will ensure a shared view of the surrounding district by the development and by the existing adjoining land holders.

16 In contradistinction to this position, Mr Pickles, counsel for the applicant, urges that I adopt the RLs that are set out in Exhibit L.

17 In Tenacity Consulting v Warringah 2004 NSW LEC 140, Senior Commissioner Roseth set out a number of principles which he considered appropriate to be dealt with when assessing view sharing in the context of instruments that set out as a broad proposition the reasonable sharing of views.

18 I am satisfied that the present provisions of the Development Control Plan contained in 4.3 are sufficiently broadly analogous to fit within that general descriptor.

19 Although the Senior Commissioner’s decision is not binding on me, I choose to adopt as appropriate those principles as are relevant for application in the present case.

20 With respect to the assessment of views, which is the first step advocated in Tenacity Consulting, it is not pressed on behalf of the council that the view of the Bali monument is an iconic one. I accept that that was the present position with respect to that landmark. I also accept that it is an appropriate reference point but not a determinative point in the landscape that I can use to assess the reasonableness or otherwise of the impact of the proposed development on the views from the two premises which are the subject of this decision. I am satisfied that if I were to adopt the Bali monument as some form of defining point that that would be entirely inappropriate as a way to approach the proposition.

21 I note that, in the second step dealt with in Tenacity Consulting, the Senior Commissioner proposed that sitting views are more difficult to protect than standing views and that expectations to retain sitting views are often unrealistic. This is to be coupled with the third step of making an assessment as to the locations from which the views are impacted.

22 In the present instance, Exhibit L largely retains what I consider to be an acceptable reference vista from all relevant appropriate places in 4/7 Daintree Crescent.

23 The significant difference between the parties, I having accepted the proposition that a view defined by having reference to the Bali monument as an appropriate setting point in the landscape, is whether or not the impact on the views from 9 Daintree Crescent is appropriate or not.

24 The Senior Commissioner went on to note, in his concluding point (and it is the critical one in the present proceedings), that with a complying proposal the question that should be asked is whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of the neighbours.

25 That, essentially, is the step that I addressed in my earlier decision when I required the applicant to consider a redesign of the development.

26 It has done so and to some extent, as described in Exhibit L, further amelioration has been achieved beyond that which would otherwise have been provided by the originally proposed development.

27 I am satisfied, based on the terms of the first three paragraphs in Exhibit L, that the degree of amelioration to the loss of views that has been achieved for 9 Daintree Crescent is acceptable.

28 That is not to say that it is perfect, nor is it to say that the development is being awarded a mark that would cause it to be regarded as a development of excellence.

29 What I am required to do in these proceedings is to determine whether or not the impact of the proposed development is acceptable or not in the terms of the planning controls and general planning principles. The degree of view retention that has been achieved for 9 Daintree Crescent is, I am satisfied, acceptable.

30 Mr Fraser had urged me to read the relevant portion of the fourth step in the Senior Commissioner’s process in Tenacity Consulting as not merely to reduce the impact on the views of the neighbours but, when combined with the Development Control Plan strictures, it should have the word “minimise” impliedly read within it. Although the word “minimise” is used in control P2 of the Development Control Plan, the Court of Appeal decision in Zhang v Canterbury City Council (2001) 115 LGERA 373 requires me to have regard to the Development Control Plan as a focal but not the sole determinative point for my consideration.

31 I am satisfied that the present application demonstrates that it has now taken steps to address the impact on views for the neighbours. There has been a very significant conservation of views for those seeking to enjoy them from a standing position. Contrary to the stricture contained in the second of the steps in the Senior Commissioner’s decision, considerable improvement has also been made to the retention of views in a seated position as a result of the revisions in design.

32 I am satisfied that, as a consequence, there has been sufficient minimisation of the impact of the views given that this is a compliant development in all relevant aspects. As a consequence, I have concluded that it would be unreasonable for me to require further redesign of the proposal.

33 Having so concluded, I am satisfied that it would be appropriate to require the applicant to revise the plans so that the northern end of the development is restricted to a maximum RL of 70.4 and that the southern portion of the development be restricted to a maximum RL of 69.8.

34 There has been no consideration in the proceedings, to date, of any without prejudice conditions of consent and, according to my records, no such conditions have been tendered.

35 The course that I therefore propose to follow is this. The matter will be set down for callover before the Registrar on 15 July but if the applicant prepares plans reflecting the decision which I have given and they are agreed to as reflecting that decision by the council and if there are no conditions of consent which are in contention between the parties, I will make orders in Chambers and vacate the callover date on 15 July.

36 If there are, however, matters relating to the conditions which are in contention between the parties, I give the parties liberty to re-list the matter before me at 9am on two days’ notice for the purposes of a short hearing to a maximum of one hour for the purposes of dealing with any conditions which are in contention.

Commissioner of the Court