WARDEN and TOWN OF MOSMAN PARK
[2019] WASAT 88
•14 OCTOBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION: WARDEN and TOWN OF MOSMAN PARK [2019] WASAT 88
MEMBER: MS L EDDY, SENIOR MEMBER
MR P DE VILLIERS, MEMBER
HEARD: 17 JUNE AND 1 JULY 2019
DELIVERED : 14 OCTOBER 2019
FILE NO/S: DR 11 of 2019
BETWEEN: MARGOT ALLISON WARDEN
Applicant
AND
TOWN OF MOSMAN PARK
Respondent
Catchwords:
Town Planning - Development - Alterations to single house - Meaning of maintain access to views - Comparison with hypothetical development - Assessing whether access to views maintained - Impact on views as aspect of amenity - Impact on views of single property - Whether unacceptable impact on amenity
Legislation:
Planning and Development (Local Government Schemes) Regulations 2015 (WA), Sch 2, cl 1, cl 67
Planning and Development Act 2005 (WA), s 26, s 252(1)
State Planning Policy 7.3 - Residential Design Codes Volume 1, cl 2.5.1, cl 5.1, cl 5.1.6, cl 7.3.1, cl 7.3.1(b)
Town of Mosman Park Local Planning Scheme No. 3, cl 16, cl 18(2), cl 25, cl 26, Table 2
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | Mr J Skinner |
| Respondent | : | Mr CA Slarke |
Solicitors:
| Applicant | : | Thomson Geer - Perth |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Belling v North Sydney Council [2018] NSWLEC 1656
Christie and Town of East Fremantle [2010] WASAT 160
Ex parte Lord v City of Perth (2002) WASCA 254
Goyder and Walsh [2009] WASAT 108
L Ramakrishnan and City of Fremantle [2004] WATPAT 89
O'Donovan and Town of Cambridge [2008] WASAT 152
Re City of Joondalup; Ex Parte Mullaloo Progress Association Inc [2003] WASCA 293; (2003) 132 LGERA 243
Stivic v Perantuono [2019] NSWLEC 1423
Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74
Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140; (2004) 134 LEGERA 23
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mrs Margot Warden (applicant) seeks review of the Town of Mosman Park's decision, made on 18 December 2018, to refuse to approve her application for alterations and additions to her existing residential dwelling at Lot 41 (No 1) The Coombe, Mosman Park (site). That review is made pursuant to s 252(1) of the Planning and Development Act 2005 (WA) (PD Act). The application for review is within time.
The alterations sought by Mrs Warden to be approved involve extending the existing basement and ground floors, some internal changes to those floors and the addition of a third storey, which incorporates a new master bedroom, living area and two balconies (proposed development). The reason given by the respondent for its refusal to approve the proposed development at that time was (Exhibit 2, page 98):
The additional building height will have a negative impact on the amenity of a neighbouring property as it will result in loss of views of significance from the top level of 6 Saunders Street, Mosman Park, and does not meet the overall objectives of the Town's Local Planning Policy 14 - Building Height and Natural Ground level.
Planning framework
Clause 67 of Sch 2 of the Planning and Development (Local Government Schemes) Regulations 2015 (WA) (LPS Regulations) lists the matters to be given due regard, if relevant, when determining a development application. In this case, the parties' position is that there is only a single issue in dispute. The respondent describes this as 'should the development be refused because of the impact of its building height on views enjoyed by 6 Saunders Street?' The applicant broadly agrees with that description although points to various questions that need to be posed in order to come to a conclusion on that larger issue.
In the context of cl 67 of Sch 2 of the LPS Regulations, the issue about the impact on views enjoyed by 6 Saunders Street (Saunders Street site) arises because of various provisions of the respondent's Local Planning Scheme No. 3 (LPS 3 or Scheme), the provisions of some State planning polices and in one of the respondent's local planning policies. The provisions of these planning instruments are matters to which due regard must be had pursuant to paragraphs (a), (c) and (g) of cl 67 of Sch 2 of the LPS Regulations. In addition, the impact on views can be described as an aspect of amenity and potentially an issue of compatibility of the development with its setting, including the relationship of the development to development on other land in the locality, which are considerations to be regarded under paragraphs (m) and (n) of cl 67 of Sch 2 of the LPS Regulations.
The Scheme map identifies the site as within a Residential zone, with a residential density code of R12.5. The objectives of that zone relevantly include (cl 16, Table 2 of LPS 3):
…
•To facilitate and encourage high quality design, built form and streetscapes throughout residential areas.
…
•To promote a high quality residential environment taking account of both the existing residential amenity and desired future patterns of development.
A dwelling (single house), which includes alterations and additions to a single house, is a 'P' use, which means it is 'permitted if it complies with any relevant development standards and requirements of this Scheme': cl 18(2) of LPS 3.
Pursuant to cl 25 of the Scheme, the R-Codes, modified as set out in cl 26 of the Scheme, are to be read as part of the Scheme. Clause 1 of Sch 2 of the LPS Regulations provides a definition of the term 'RCodes', which is:
… the Residential Design Codes prepared by the Western Australian Planning Commission under section 26 of the Act, as amended from time to time[.]
Currently, State Planning Policy 7.3 - Residential Design Codes Volume 1 (SPP 7.3 Vol 1) is the Residential Design Codes prepared under s 26 of the PD Act that is applicable. None of the modifications specified in cl 26 of LPS 3 are presently relevant.
Pursuant to cl 7.3.1 of SPP 7.3 Vol 1, the deemed to comply provisions relating to building height in cl 5.1.6 are able to be amended or replaced by a local planning policy.
The respondent has adopted Local Planning Policy 14: Building Height and Natural Ground Level (LPP 14), which contains a number of relevant provisions. The objectives of LPP 14 are:
To impose building height controls and guidance to the method of calculating building height to meet the following objectives:
•To ensure that the height of buildings is consistent with the desired character of the locality; and,
•To ensure that the height of a building does not overly impact on the streetscape or on neighbouring properties.
Clause 5.1.1 and Table 1 of LPP 14 provide that the deemed to comply requirement (replacing that specified in SPP 7.3 Vol 1, cl 5.1.6, C6) for building height on residential zoned land with R 12.5 density coding is:
(a)a maximum of two storeys;
(b)a maximum height of 8 metres to the top of an external wall (concealed roof); and
(c)a maximum height of 8.5 metres to the top of a pitched roof.
There is no dispute that the proposed development does not meet the deemed to comply requirements, as replaced by LPP 14, because it is a three storey building with a flat (concealed) roof with a building height of external walls ranging from approximately 8.2 metres to approximately 10.2 metres.
The relevant design principle, at cl 5.1.6, P6, of SPP 7.3 Vol 1 is:
Building height that creates no adverse impact on the amenity of adjoining properties or the streetscape, including road reserves and public open space reserves; and where appropriate maintains:
•adequate access to direct sun into buildings and appurtenant open spaces;
•adequate daylight to major openings into habitable rooms; and
•access to views of significance.
The term 'adjoining property' is defined in Appendix 1 of SPP 7.3 Vol 1 as:
Any lot:
•on which any dwelling for which provision is made in the RCodes may be constructed under the scheme; and
•which shares a boundary or portion of a boundary with a lot on which there is a proposed residential development site or is separated from that lot by a right-of-way, vehicle access way, pedestrian access way, access leg of a battleaxe lot or the equivalent not more than 6m in width.
The respondent did not assert that the Saunders Street site was an 'adjoining property' within the meaning of SPP 7.3 Vol 1, a concession which, given that the site and the Saunders Street site are separated by two road reserves, was appropriate.
The term 'views of significance' is not defined in SPP 7.3 Vol 1. LPP 14 includes a definition of that term as follows:
The following principles assist in assessing the significance of a view:
1.Whole views are more significant than partial views;
2.Iconic views, water views and views of where water meets land are more significant than land views and views without icons;
3.Views across front and rear boundaries are more significant than views across side boundaries;
4.Standing views are more significant than seated views;
5.Views from living areas (including kitchens) are more significant than from bedrooms and service areas.
6.A view from an opening on an adjoining property that would not comply with the relevant visual privacy requirements of the day is not significant.
The question of whether a local planning policy can permissibly purport to define a term used in SPP 7.3 Vol 1 was not fully ventilated by the parties at the hearing of this matter. The Tribunal raised the question, but only during closing submissions, and only one of the parties' representatives addressed the question. For that reason, the Tribunal will not consider that issue in the context of this matter. Whether or not LPP 14 can permissibly define a term used in a State planning policy, it remains a local planning policy to which due regard should be had in the consideration of whether or not to approve an application for development approval.
LPP 14 includes a 'local housing objective' in relation to building height, at L1 under cl 5.1.1, which provides:
Building façades - for single houses, grouped dwellings and multiple dwellings in areas codes less than R40, that are greater than two storeys, buildings present a human scale for pedestrians at the locality and building façades are designed to reduce the perception of height through design measures.
Clause 7.3.1(b) of SPP 7.3 Vol 1 provides that a local government may 'augment the R-Codes by providing local housing objectives to guide judgements about the merits of proposals for any aspect of residential development that does not meet the requirements or is not provided for, under the R-Codes'. The concept of building facades as an aspect of building height is not addressed in the R-Codes, and as such, the local housing objective L1 contained in LPP 14 is applicable. Having said that, in this case, and properly so, no issue was raised that the proposed development does not present a human scale for pedestrians in the locality.
In exercising judgment about an application, a decision-maker is required to consider the merits of the proposal having regard to the objectives and balancing these with the consideration of the design principle: cl 2.5.1 of SPP 7.3 Vol 1. The objectives provided at cl 5.1 of SPP 7.3 Vol 1 are:
(a)To ensure that residential development meets community expectations in regard to appearance, use and density.
(b)To ensure that designs respond to the key natural and built features of the area and respond to the local context in terms of bulk and scale, or in the case of precincts undergoing a transition, will respond to the desired future character as stated in the local planning framework.
(c)To ensure adequate provision of direct sun and ventilation for buildings and to ameliorate the impacts of building bulk, privacy and overshadowing on adjoining properties.
(d)To ensure that open space (private and communal) is provided on site and:
•landscaped to establish streetscapes;
•provide a balanced setting and relationship to buildings; and
•provide privacy, direct sun and recreational opportunities.
(e)To ensure that development and design is appropriately scaled, particularly in respect to bulk and height, and is sympathetic to the scale of the street and surrounding buildings, or in precincts undergoing a transition, development achieves the desired future character of the area identified in local planning framework.
None of these are of any particular relevance to the issue under consideration in this case, and they do not assist in determining whether the proposed development is consistent with SPP 7.3 Vol 1 in the circumstances of this matter.
Parties' submissions
The applicant submits that the design principle P6 of cl 5.1.6 of SPP 7.3 Vol 1 should be read with the understanding that the reference to 'adjoining properties or the streetscape, including road reserves and public open space reserves' attaches to the words before the semicolon and after the semicolon. That is, the reference to 'and where appropriate maintains' must be understood as also including the words 'adjoining properties or the streetscape, including road reserves and public open space reserves'. If the applicant's interpretation is correct, as the Saunders Street site is not an adjoining property, the requirement in the design principle P6 can only therefore be to 'where appropriate' maintain views of significance from the streetscape, including road reserves and public open space reserves. The proposed development does not affect any views from the streetscape.
The applicant submits in the alternative, if her interpretation of cl 5.1.6 P6 of SPP 7.3 Vol 1 is not accepted, that the only relevant question raised by the design principle is whether the proposed development appropriately maintains access to views of significance. The applicant submits that although the proposed development has some limited impact on some of the views currently available from the Saunders Street site, the design principle of SPP 7.3 Vol 1 is satisfied because nonetheless access to views of significance is maintained, albeit there may be a need to move to a different location within the Saunders Street site in order to access some of those views.
The applicant further submits that it is also necessary to consider the impact of the proposed development on the views of significance available from the Saunders Street site when considering impacts on amenity, or the compatibility of the proposed development with its setting. The applicant submits that the evidence establishes that the only impact on views is to a small fragment of the view to The Coombe Reserve. The otherwise panoramic views available from the Saunders Street site are unaffected. On this basis, the applicant asserts that the proposed development has no adverse impact on amenity, or at least such a limited impact that the application for approval should be allowed. Similarly, the proposed development is compatible with its setting.
In assessing impact on views, the applicant submits that the starting point is that there is no ownership of a view and no guarantee of protection of views; citing Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45 and L Ramakrishnan and City of Fremantle [2004] WATPAT 89. The applicant then refers to the four step assessment in relation to the impacts on views provided for in Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140; (2004) 134 LEGERA 23 (Tenacity) at [26]-[29], which the applicant summarises as:
(a)Step 1 - an assessment of the view to be affected
(b)Step 2 - consider from what part of the property the views are obtained;
(c)Step 3 - assess the extent of the impact; and
(d)Step 4 - assess the reasonableness of the proposal that is causing the impact.
The applicant notes that the decision in Tenacity concerns a local environment plan that expressly required that 'development is to allow for the reasonable sharing of views' (at [24]) and contained a maximum building height, which could only be varied in the exercise of discretion. The applicant submits that the fourth step in Tenacity is largely inapplicable in the context of consideration of whether a design principle has been met because there is no question of whether development is compliant or non-compliant.
The applicant submits that in considering the impact of an interference with views, and whether that is an unacceptable amenity impact, it is appropriate to have regard to how those views would have been impacted by a development that complies with the deemed to comply provisions of SPP 7.3 Vol 1 in relation to height, citing Christie and Town of East Fremantle [2010] WASAT 160 (Christie); Goyder and Walsh [2009] WASAT 108 (Goyder) and O'Donovan and Town of Cambridge [2008] WASAT 152 (O'Donovan).
The respondent submits that the proposed development does not comply with the design principle P6 in SPP 7.3 Vol 1 because it fails to maintain views of significance at the Saunders Street site. In addition, the proposed development adversely impacts the amenity of the Saunders Street site because of its impact on that property's existing views, in the context of a locality where views are highly valued and very important to the amenity of the locality.
The respondent relies on evidence from Mrs Cate Hohnen, one of the owners of the Saunders Street site, that the view down The Coombe to the foreshore was an important factor in the decision to purchase the property. That view is unique, or close to unique and is of considerable significance to her and her husband. Mrs Hohnen says that the house on the Saunders Street site was built in order to comply with the requirements to maintain other's views and also to maximise the views as much as possible.
According to the planning officer employed by the respondent, the views in the locality of the site are highly valued. The town planner engaged by the applicant agreed that views in this location are very important; they are a defining feature.
Two landscape architects gave evidence in the proceedings, and the respondent submitted that the evidence of Mr Peter Hillman should be preferred because he had used a methodology consistent with the relevant guidelines and Mr Robin Burnage had not. According to Mr Hillman, there are a number of views of significance available from the Saunders Street site and the view of The Coombe Reserve is one of these. Mr Hillman concludes that overall the proposed development will have a moderate impact on that view of significance.
The respondent disputes the applicant's interpretation of cl 5.1.6 P6 of SPP 7.3 Vol 1. The respondent submits that the semicolon separates two distinct concepts, one that applies to adjoining buildings and the streetscape, and one that applies in every other case. This is consistent with the grammatical purpose of a semicolon and avoids the redundancy that occurs if the applicant's interpretation is adopted. That is, as the first part of the clause requires no impact, the second part of the clause would add nothing if it only applied to adjoining buildings and the streetscape. In addition, the respondent submits that there is no planning reason why the design principle would be restricted to only adjoining buildings and the streetscape.
The respondent submits that it is appropriate to maintain access to views in this locality as it is a very important aspect of amenity in this locality. The respondent consistently applies the controls in relation to maintenance of views and only departs when there is no impact.
The respondent submits that maintenance of access to views requires that views are not reduced. The proposed development does not keep the views from the Saunders Street site unimpaired; it reduces or impairs access to views of significance.
Finally, the respondent submits that the proposed development has an impact on the amenity of the Saunders Street site and as such it should be refused. The respondent refers to Sunbay Developments Pty Ltd and Shire of Kalamunda [2006] WASAT 74 at [28] in support of the proposition that it is open to refuse a development application because of the extent of the impact on part of the locality or a single property. In this case, the views of significance are a highly important aspect of the locality; there is a moderate impact on those views; and the views are foreground views.
To the extent that the applicant relies on authorities to support the appropriateness of relying on the impact of a hypothetical development, the respondent says this is an incorrect approach; citing Ex parte Lord v City of Perth (2002) WASCA 254 (Lord).
Determination of legal issues
Proper interpretation of cl 5.1.6 P6 of SPP 7.3 Vol 1
The exercise of statutory construction is a process of determining the objective meaning of the instrument under consideration by application of the recognised rules of interpretation to the legislative text as a whole, in light of its context and purpose; Saunders v City of South Perth [2019] WASC 226 (Saunders) at [97]. As His Honour Quinlan CJ recently explained (Saunders at [98]-[99] citations omitted):
A relevant matter of context in the present case is that the legislative instrument being construed is a planning scheme. As the Court of Appeal confirmed in Australian Unity Property Ltd v City of Busselton, [2018] WASCA 38 [81]] focus on the legislative text facilitates the comprehension of the meaning of the legislation by the persons whose conduct it regulates. Their Honours continued:
These considerations are no less important when the legislative instrument being construed is a planning scheme. The terms of planning schemes are regularly referred to, often without the assistance of professional legal advice, by planners, government officials, landowners and prospective landowners to identify the permissible uses of land to which the scheme applies. Placing a counter-intuitive judicial gloss on the plain language of a planning scheme reduces the capacity of those persons to comprehend its meaning.
The Court of Appeal went on to note that, in construing a planning scheme, it is relevant that such schemes are not usually drafted by Parliamentary counsel and are often expressed in terms which lack the precision of an Act of Parliament. Accordingly, planning schemes should be construed broadly, rather than pedantically and with a sensible practical approach.
Having regard to these principles, the Tribunal is not persuaded that the applicant's interpretation of cl 5.1.6 P6 of SPP 7.3 Vol 1 is correct.
Ordinarily, a semicolon may be used to link in the one sentence two closely related but separate concepts or to separate items in a list. The applicant submits that the sentences separated by the semicolon in cl 5.1.6 P6 of SPP 7.3 Vol 1 both relate to building height and also both relate only to adjoining properties or the streetscape. The first limb requires no adverse impact on amenity at all on the limited places specified. The second limb of the sentence appears to allow for some impact so long as 'adequate access to direct sun', 'adequate daylight' and 'access to views of significance' is maintained. It is also only necessary that these things be maintained 'where appropriate'.
If the second limb of the sentence applies only to adjoining properties or the streetscape, then the requirement that there be no impact on amenity because of building height must mean that whatever access to direct sun, daylight and views (of whatever kind) must be maintained. There is no need to separately identify these things. The provision does not make sense if read the way the applicant suggests.
It would also create an absurd result that building height could only be considered in so far as it impacts on adjoining properties and the streetscape. As is the case in the present matter, there are many situations where building height has the potential to impact on properties that are not adjoining properties.
Properly understood, cl 5.1.6 P6 of SPP 7.3 Vol 1 provides for two separate concepts that are linked by their connection to building height. That is, building height that creates no adverse impact on the amenity of adjoining properties or the streetscape on the one hand, and building height that, where appropriate, maintains the three things listed in the bullet points that follow, on the other hand.
Consideration of hypothetical development
In Goyder, at [47]-[48] the then President Chaney J, in conducting a review of the Tribunal constituted by non-legally qualified members, stated that it was 'open and sensible' for the Tribunal to take into account that any development which might reasonably be anticipated in the locality would have precisely the same effect as the proposed development. His Honour also said '[t]here may be cases where a particular adverse impact might be unacceptable in any circumstances': Goyder at [48]. Later in the same case, at [64]-[65], Chaney J made the following comments:
This ground relates to the references in the Tribunal's reasons to the effect that might be expected with the construction of any other house of reasonable proportions on the site. For reasons which I have already explained, the Tribunal was justified in considering the relative impact of the proposal having regard to any other development which might reasonably be expected to occur on the site, to the extent that it did.
It is asserted that the Tribunal's consideration of what might be developed on the site was analogous to the position in SPB (Australia) Pty Ltd and Town of Claremont [2003] WATPAT 138. In that case, the former Town Planning Appeal Tribunal held that the fact that a better proposal might be made than the one being considered by the Tribunal was irrelevant. Rather, the Tribunal was required to assess the proposal before it having regard to the applicable planning considerations. I do not agree that that case is analogous. It is a different thing to say that a proposal should be rejected because a better design might be available, from saying that it is open to consider whether any adverse impact of a proposed development is an inevitable consequence of any reasonable development of the particular site.
In Christie, which involved review of the Tribunal's decision about the impact of over height piers, Chaney J considered that the failure to have regard to the past and likely future landscaping in the front setback area of the site on the views available was an error: at [24]. The evidence before the Tribunal was that the relevant location had, prior to development, been landscaped with mature trees that blocked the views. It was only when the land was cleared in order to build the piers in question that 'the "new" glimpses became available to the objecting neighbour': Christie at [22].
In O'Donovan, the Tribunal made the following statements at [56]:
Dealing first with views, the Tribunal finds that it is unlikely that the marginal increase in height will cause a loss of views of significance. The wall height at the front of the proposal is less than 8 metres. The design guidelines permit a roof height of up to 10 metres. Any complying roof would cause potentially more loss of views than the proposal. Furthermore, as demonstrated on a drawing submitted by the applicant, the increased front setback reduces the impact of the height. The possible views of significance are out towards Lake Monger. However, the park and the lake are on land that falls away from the site. A complying wall height on a complying front setback would block these potential views. However, more significant is the cross-section through the site which shows the Moreton Bay Fig trees immediately across the road from the subject land. The scale and height of these trees make the building height insignificant in terms of views. Even, disregarding the benefit of the proposed view corridors, the Tribunal finds that the proposal complies with the performance criteria of the R Codes in terms of protection of views of significance.
The respondent submits that none of these cases considered the decision in Lord at [42], where the Templeman J (with Parker and Hasluck JJ agreeing) stated:
Of more concern, I think, is the opinion of the planning officers that the proposed variation to the setback requirements could be supported because a building could be designed which complied fully with the setback requirements but which nevertheless had a more significant impact upon the adjoining buildings than the proposed development, which would sit skewed on the site. In my view, that is an irrelevant consideration which was out of place in the planning officers' report.
No explanation is given for why this was considered an irrelevant consideration. Lord was referred to in the decision of Re City of Joondalup; Ex Parte Mullaloo Progress Association Inc [2003] WASCA 293; (2003) 132 LGERA 243 (Mullaloo Progress Association) at [99] where the following statements were made:
Ground 5(e) alleges that the council took into account an irrelevant consideration, namely a statement in the council officer's report that 'even though the development will affect views, the current tavern has been positioned to one side of the site and redevelopment of the tavern at this current height would also affect views'. A statement to that effect was contained in the planning officer's report.
The Association then referred to Re City of Perth; Ex parte Lord [2002] WASCA 254 at [42], where Parker J concluded that the opinion of the planning officer in that case, that a proposed variation to a setback requirement could be supported because 'a building could be designed which complied fully with the setback requirements …', was an irrelevant consideration. It is clear, therefore, that the officer's opinion in the Ex parte Lord case was a statement about a hypothetical situation. Unlike Ex parte Lord, the statement in the planning officer's report in this case does not refer to a hypothetical situation. It relates to the existing building and assisted councillors by informing them about the effect the proposed development would have on the views of the properties located directly behind the subject site and the effect that the redevelopment of the existing tavern would have on such properties. In my opinion, this ground should be dismissed.
Thus there is a distinction between a real, existing situation, and a hypothetical situation. In Goyder, the issue was that any development would have the impact that the proposed development would have. We see this as being akin to a real, existing situation, it is not reliant on some unknown particular form of development. The decision in Christie was heavily impacted by the fact that heavy vegetation that precluded existing views had only been removed in order to put in place the development in question, and there were plans to re-instate the vegetation, which would cause no greater impact than had previously existed. Having regard to Lord and Mullaloo Progress Association, we think it has to be said that the O'Donovan decision, which was made by a non-legally qualified member who is unlikely to have been referred to the relevant case law, is wrong.
In this case, the Tribunal is asked to compare the effect on views caused by the proposed development with an amorphous shape imposed over a drawing of the proposed development that shows where 8 metres above ground level occurs across the whole site: Exhibit 13. According to the case law referred to above, this is an irrelevant factor to which the Tribunal must not have regard.
Even if it were not, height cannot be considered as a single element applied across a whole site. There are many aspects of SPP 7.3 Vol 1, which impact on each other and on the final form of a building. Not only height, but also factors such as setbacks, bulk and scale, articulation, etcetera impact on the final form of a building. It is meaningless to look at a line at 8 metres high across the whole of the site and attempt to make anything of that. The Tribunal has no regard to Exhibit 13 in determining this matter.
Test for assessing views
As indicated above, both parties accept that the Tribunal has applied Tenacity a number of times as an appropriate test for assessing the impact of views. The applicant asserts that in the context of determining whether the proposed development is consistent with the relevant design principle of SPP 7.3 Vol 1, the last step in that test is not relevant.
In Tenacity, the relevant issue was described as 'is the impact on the privacy and views of neighbours acceptable?' at [9]. The relevant local environment plan (LEP) included development standards, the relevant standards being described by the Court at [11]-[14]:
11The only two development standards that apply to this site, being in a Local Retail Centre, relate to aspects of height. The LEP requires that 'buildings are neither to exceed two storeys nor 8.5 metres'. The proposal does not exceed 8.5m but it is three storeys, so it does not comply with the first of the above standards.
12The LEP goes on to state that 'consent may be granted for a building of more than two storeys on significantly sloping land', subject to further criteria. The LEP does not define what is a significant slope[.]
…
14Clause 20 of the LEP allows consent to be granted even where a proposal does not comply with a development standard, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy. Clause 39 contains the general principles of development control for local retail centres.
Local retail centres are to incorporate a range of small-scale business uses at street level with offices or low-rise shop-top housing (being housing not on the ground floor) above to create places with a village-like atmosphere the provide a safe and comfortable environment for pedestrians and a range of business and community uses meeting the needs of the surrounding area.
Development is to integrate with the established pattern of the centre and the continuity of existing streetscape is to be maintained.
The building height in local retail centres is to accord with the height limit for the applicable locality, unless the Locality Statement provides otherwise.
Development that adjoins residential land is not to reduce the amenity enjoyed by adjoining occupants. In this regard the built form of development in the local retail centre is to provide a transition to adjacent residential development, including reasonable setbacks from side and rear boundaries, particularly at the first floor level.
Other built form controls set out in a Locality Statement which are not specifically addressed to a local retail centre are not to be considered.
Later, the Court refers to cl 61 of the LEP, which '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'; Tenacity at [24].
It is in this context that the following remarks were made (Tenacity at [25]-[29]:
25The 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.
26The 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.
27The 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. 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.
…
29The 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.
Tenacity is still consistently applied in the New South Wales Land and Environment Court: see, for example, Stivic v Perantuono [2019] NSWLEC 1423; Belling v North Sydney Council [2018] NSWLEC 1656.
Care should be taken when applying principles stated in cases where the underlying legislative provisions are not the same. In this case, the design principle at cl 5.1.6 P6 of SPP 7.3 Vol 1 requires consideration of whether the building height, where appropriate, maintains access to views of significance. That question is fundamentally different to the question faced by the Court in Tenacity and is different to the purpose for which the Court adopted its four step analysis. It does not, unlike the planning instrument under consideration in Tenacity, start from a proposition that there should be reasonable sharing of views. In this case, when considering cl 5.1.6 P6 of SPP 7.3 Vol 1, the Tribunal must ask itself the following questions:
(1)What is the existing access to views of significance, unaffected by the proposed development?
(2)Is it appropriate that access to views of significance be maintained in the circumstances of this case?
(3)If so, does the proposed development maintain access to views of significance?
As indicated above, the parties made submissions about what is necessary to 'maintain access to views'. None of these words are defined in SPP 7.3 Vol 1. The ordinary meaning of 'maintain' is (Macquarie Dictionary Online):
verb (t) 1. to keep in existence or continuance; preserve; retain: to maintain good relations with New Zealand.
2. to keep in due condition, operation, or force; keep unimpaired: to maintain order; maintain public highways.
3. to keep in a specified state, position, etc[.]
'Access' has the meaning (Macquarie Dictionary Online):
noun 1. way, means, or opportunity of approach or entry: *No healthy clothing is absolutely air-proof, the access of the air through it being necessary to our health –PHILIP E MUSKETT, 1893.
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–verb (t) 10. to gain admittance to: you can access the foyer through this door[.]
The requirement is not to 'maintain views' but rather it is to 'maintain access to views', where appropriate. The words used support the conclusion that the design principle is not focused on maintaining views exactly as they exist at a point in time prior to the development under consideration occurring. The nature of views is such that the concept of a fixed view is somewhat incongruent. Views, and how one accesses views, can be affected by things changing in the public realm. The focus in the design principle on maintaining access to views makes sense taking into account this understanding of the nature of views, particularly from a private space.
This is not to say that the design principle in cl 5.1.6 P6 of SPP 7.3 Vol 1 is only concerned with consideration of whether there is maintained some access to views, no matter how different that access may become, or how much existing views are affected. What level of access to views should be maintained, where appropriate, will be a question of fact and degree depending on the circumstances.
SPP 7.3 Vol 1 does not specify how one is to undertake the comparison between existing access to views and any change in the access brought about by a development. In this way there is a similarity to the process under consideration in the Saunders case. There, the Chief Justice advised that the comparison exercise 'does not require any particular formula to be applied'; Saunders at [120].
Finally, none of the foregoing should be taken to mean that the test in Tenacity is not a useful test. When considering amenity impacts, the concept of reasonable sharing of views is a useful tool to work out whether or not any impact on views is an unacceptable impact on amenity.
Expert evidence
Mr Hillman and Mr Burnage provided a joint statement following a chaired conferral (Exhibit 11). The following matters are agreed between the experts.
The view of the end of The Combe, where the road reserve meets the water's edge, has the potential to be considered as a significant view.
Applying LPP 14, the experts agreed:
(1)Whole views are more significant than partial views. The view from the Saunders Street site is a whole view.
(2)Iconic views, water views and views of where water meets land are more significant than land views and views without icons. The view from the Saunders Street site includes a view to The Combe Reserve where the water meets the land.
(3)The view from front or rear boundaries are more significant than views from side boundaries. The views from the Saunders Street site are from the front boundary.
(4)Standing views are more significant than seated views. The view from Saunders Street site contained standing views of significance.
(5)Views from living areas are more significant than views from bedrooms/service areas. The viewpoints of each of the experts considered in their respective assessments are all taken from living areas.
The view to the focal point 'where the water meets the land' is significant in the context of LPP 14. It is also a view that is considered significant in the Visual Landscape Planning Manual.
The models/dataset prepared by a group named 'MNG' (Exhibit 2, pages 26-66) accurately demonstrate the proposed development as viewed from the Saunders Street site. It can be used to demonstrate any impact on the views from the Saunders Street site.
The models/dataset prepared by Urbis also accurately demonstrate the proposed development as viewed from the Saunders Street site. It also can be used to demonstrate any impact on the views from the Saunders Street site.
The drawing labelled VIA-P5 in the Urbis report (Exhibit 6, attachment 1) is an accurate depiction of where views of where water meets land, specifically the bottom of The Coombe Road Reserve, are available from the living areas in the Saunders Street site. The view to The Combe Reserve is currently available from all 12 viewing locations identified by Urbis. The view to The Coombe Reserve is also currently available from all 12 viewing locations.
Views from the Saunders Street site that are significant include, but are not limited to, the city, the hills, the Point Walter Spit, Mosman Bay, Freshwater Bay, the moored boats in Mosman Bay, and The Combe Reserve foreshore.
The proposed development will not have an impact on the views from the Saunders Street site to the background, as identified in the Visual Landscape Planning Manual (areas greater than 6.5 kilometres from the proposed development). These views will be maintained.
The proposed development will change the foreground views from the Saunders Street site as identified in the Visual Landscape Planning Manual (areas within 0 to 0.5 kilometres from the viewer).
The views from the Saunders Street site are transitory in nature and will change over time. This may be due to many factors, for example, vegetation growing, vegetation dying, vegetation being pruned, seasonal change, Council infrastructure improvement or development occurring.
In summary, the views that are available from the Saunders Street site, where those views are currently accessed from that site, and the significance of the views are not in dispute. It is also not in dispute that none of the panoramic views of the river and beyond will be affected by the proposed development at all. The montages in the Urbis report that is attached to Mr Hillman's statement as attachment 1 (Exhibit 6) accurately reflect the impact on the views to The Coombe Reserve and the foreshore. The drawing labelled VIA-P10 in that attachment identifies the changes in views caused by the proposed development from the living areas at the Saunders Street site. Views down The Coombe to The Coombe Reserve will continue to be available, but the locations from which they can be accessed from within the Saunders Street site will change.
The Tribunal accepts the experts' opinions on these matters and makes findings in accordance with the matters agreed by the experts as outlined above.
The difference between the experts is in relation to how one should assess the impact of the changes to the available views down The Coombe and to The Coombe Reserve, and the changes from where those views can be accessed from within the Saunders Street site. One aspect of this difference is the degree of interest, and as a consequence the degree to which this particular view is a focal point that is central to the forefront view. Part of the reason for this difference is that this view is a very narrow view, that is already partially screened by existing vegetation. The framing of that view, the activity that occurs in the relevant location and the nature of the view being in the forefront of the view influence Mr Hillman to find that it is a noteworthy focal point view. Mr Burnage however, considers this view is very limited in its nature and scale and thus it does not draw the eye so as to become a focal point view.
The respondent criticises Mr Burnage's conclusions in relation to the visual impact because in his statement he does not identify the methodology used for his assessment and he does not comply with the guidelines for a visual impact assessment in the Visual Landscape Planning Manual, which both experts accept is the accepted guidance document. The applicant criticises the methodology used by Mr Hillman in that, because of the methodology adopted, even a visual effect rating of 'low' always results in at least an overall moderate visual impact if the view is rated as having high significance; as opposed to low or moderate significance. In addition, the degree of significance allocated to a view is influenced by the subjective importance of views down The Coombe to The Coombe foreshore to the owners of the Saunders Street site.
On the site view, the Tribunal had access to the Saunders Street site and the Tribunal noted that the view to the foreshore is very narrow within a much broader field of view. Mr Burnage's assessment of the view accords with what the Tribunal observed and the Tribunal prefers his evidence on this point. It is accepted that, if this view was particularly important to a person, as it apparently is to the owners of the Saunders Street site, then it may be to them a noteworthy focal point view. But objectively, coming cold to the location and observing all aspects of the view from various locations within the property, the Coombe Reserve aspect of the Saunders Street site's view is such a small part of the broader view that one struggles to notice it. Looking for it, it is quite difficult to make much out. The photographs contained in attachment 1 of Exhibit 6 of the existing view from the Saunders Street site support this conclusion.
Both parties' criticisms of the landscape architects' opinions have some merit. The Tribunal considers both experts were trying to be helpful to the Tribunal, but nonetheless, it is not helpful to have statements of conclusions reached by an expert without a sufficiently thorough explanation of the process or methodology used to allow the Tribunal to understand how the conclusions were reached. It is not for an expert to answer the ultimate question before the Tribunal, it is for the Tribunal to do so. If the Tribunal cannot understand the approach taken and the reasoning followed, it cannot analyse and evaluate those things in order to reach its ultimate determination. On the other hand, the allocation of degrees of significance of a view, particularly to the extent based on the subjective views of a particular land owner, is also not particularly helpful. Clause 5.1.6 P6 of SPP 7.3 Vol 1 is not about the subjective opinions of a land owner in relation to what he or she considers to be the importance of particular views. Rather, it requires an assessment of whether or not access to views is maintained, and to the degree they are not, whether that is appropriate. This has to be analysed on an objective basis.
Determination
In this case, when assessing the proposed development against cl 5.1.6 P6 of SPP 7.3 Vol 1, the experts' conclusions about the degree of level of 'visual impact' are not particularly useful in answering the questions the Tribunal must ask itself, as stated above. However, the information provided by the landscape architects about the existing views available from the Saunders Street site, where those views are accessed from and how both of those things will or will not be changed by the proposed development is very helpful. The conferral of the experts and the degree of agreement between then on these matters is also very helpful to the Tribunal.
In this case, the proposed development would result in some changes to where one would have to be located, and in some cases in relation to whether one would have to be standing or seated, in order to access some aspects of the existing views from the Saunders Street site to The Coombe Reserve, and in particular parts of the Coombe Reserve where water meets the land.
Figure 7 on page 10 of attachment 2 to Mr Hillman's witness statement (Exhibit 6) lists the approximate reduction of view 'to focal point', which is the view to where water meets land at The Coombe foreshore (focal point view) available from the Saunders Street site. This shows that there is no total loss of that view from any of the vantage points assessed. At two points, more than 75% of the currently available focal point view will be screened by the proposed development. At one point 50% of the currently available focal point view will be screened by the proposed development. At all other vantage points assessed there is either no focal point view loss caused by the proposed development or view loss is mitigated by existing vegetation screening. These conclusions are contained in the Urbis report, which the experts agreed accurately demonstrates the impact on views from the Saunders Street site.
There is no dispute that in the locality of the site and the Saunders Street site, views are highly valued and a significant part of the amenity of the locality. The respondent has adopted LPP 14, which is aimed at imposing building height controls with the objective of maintaining the desired character of het locality and ensuring building height does not overly impact on neighbouring properties. The Tribunal is persuaded that such a locality is a locality where it would be appropriate to maintain access to views of properties potentially affected by development that might impact on that access to views.
There can be no disputing that the Saunders Street site currently has access to a number of views of significance. One of the views that is significant, the view down The Coombe to The Coombe foreshore, where water meets the land, will, to a degree, be impacted if the proposed development proceeds. All other views from the Saunders Street site are not affected in any way by the proposed development.
As can be seen from the drawing labelled VIA-P10 (Exhibit 6, attachment 1), the area where the focal point view is 75% screened by the proposed development is located at the innermost area of the covered terrace on the north side. An area of approximately 2-2.5 metres in depth (and closer to 3 metres in depth on the northern side) of the covered terrace and living area is shown as having the focal point view partially screened by the proposed development from a standing position. The rest of the covered terrace, living area and television sitting area is shown as having the focal point view partially screened when standing. There are two vantage points, one on the covered terrace and one in the living area, shown as having the focal point view partially screened when seated.
The Tribunal is satisfied that in the circumstances of this case, access to the views from the Saunders Street site are maintained despite the proposed development. All but one view are unaffected by the proposed development. One view, a significant view, is still able to be accessed from all of the locations it is currently accessed from. The fact that there may be a differing degree of screening of the focal point view from some locations at the Saunders Street site does not, in this case, equate to a failure to maintain access to views within the meaning of cl 5.1.6 P6 of SPP 7.3 Vol 1. The proposed development is consistent with the design principle.
Having regard to the objectives of LPP 14, that building height should not overly impact neighbouring properties, the Tribunal is satisfied that the proposed development does not overly impact the Saunders Street site for the same reasons.
Turning to the question of amenity, or compatibility with setting, as stated above, there is no dispute that views are significantly important and highly prized in this locality. The relevant locality for the assessment of the proposed development's impact on the amenity of the locality is, given that the only amenity issue is related to the impact on views, is the nearby surrounding properties and public domain from which the proposed development might cause an impact on views. There is no suggestion that any property in the locality, other than the Saunders Street site, or anywhere in the public domain, will have any views impacted by the proposed development. However, it is the case that it is possible for an impact on a single property to give rise to an unacceptable impact on the amenity of the locality in some circumstances.
There is no dispute that there will be some impact on one of the views currently available from the Saunders Street site if the proposed development is to proceed. The Tribunal is persuaded that the test in Tenacity, which is reflected in LPP 14 in this case, is an appropriate mechanism to evaluate the impact on the amenity of the locality based on the impact on views available from the Saunders Street site.
In the assessment of the existing views available, it is noted, as stated above, that the existing view is a whole view, includes water and land views and also includes a view of where water meets land at The Coombe foreshore. The landscape architects also agreed that there are iconic views available from the Saunders Street site. There can be no doubt, and the Tribunal finds, that the existing views available from that site are significant and important views in terms of the amenity of that site.
The views available from the Saunders Street site are available from the front of the property and can be enjoyed standing from the covered balcony, from the inside living area at the front of the house and from most of the living area adjacent to the covered balcony. Views can also be enjoyed from a seated position from areas of the internal living areas and the covered balcony.
The impact on the existing views has been summarised above.
The fourth step from Tenacity is difficult to apply in the context of this matter, because there is no ability to find that the proposed development is, or is not, a 'compliant' development.
The Tribunal accepts that there is an impact on the subjective amenity of the Saunders Street site from the owner's perspective. However, this is the only property on which the proposed development will have any impact on in relation to views. The impact is a limited one. The view of The Coombe foreshore will still be available from significant parts of the dwelling on the Saunders Street site. From many of the vantage points assessed by Urbis, the view is unaffected. All views other than the view to the foreshore are unaffected by the proposed development.
The Tribunal is not persuaded that the limited impact on a single, very narrow, part of a single view, albeit in the foreground and albeit a significant view, has any adverse impact on the amenity of the locality in the circumstances of this case. The Tribunal finds that the very limited nature of the impact, on a single property, is not sufficient to amount to an adverse impact on the amenity of the locality in this case.
The Tribunal is satisfied that the correct and preferable decision is that the proposed development should be approved subject to conditions.
The respondent provided without prejudice conditions of approval to the Tribunal (Exhibit 3). The applicant did not object to any of those conditions other than proposed conditions 4 and 5, which are apparently standard conditions imposed by the respondent to ensure that any necessary screening that will ensure appropriate visual privacy is installed. The basis for this objection was that the applicant did not understand there to be any issue with visual privacy in relation to the proposed development.
Ms Parsons explained in evidence that the screening that is provided for in the plans of the proposed development is acceptable and there is no requirement for any further screening. She said that the reason for the proposed conditions in this case is that they are useful in terms of enforcement if the proposed development is constructed without the screening provided for on the plans.
Mr Casselton agreed that there is no requirement for any further screening than is provided for on the plans for the proposed development. In his view, the fact that the screening is shown on the plans should be sufficient. Ms Parsons agreed that it should be sufficient, but she re-iterated that in her experience, identifying the need for screening in a condition of approval made enforcement much more effective.
The Tribunal accepts that Ms Parsons is in a position to understand what enforcement issues tend to arise and why. We accept that it is appropriate for a condition to confirm that the proposed development has to include screening in accordance with that shown on the plans for the proposed development. However, the proposed conditions go further than this and could, despite Ms Parsons' views, be used to require the applicant to include additional screening. There is no basis for the applicant to be exposed to that uncertainty. The Tribunal is satisfied that Ms Parsons' concerns can be adequately addressed by the imposition of a condition that says what is required. The proposed conditions 4 and 5 will be replaced with a condition requiring that the proposed development must be constructed so as to include screening in accordance with that shown on the plans for the proposed development.
Orders
The Tribunal orders:
1.The application is allowed.
2.The respondent's decision, made on 18 December 2018, to refuse to approve the application for alterations and additions to the existing residential dwelling at Lot 41 (No 1) The Coombe, Mosman Park is set aside and the following decision is substituted:
3.The application for alterations and additions to the existing residential dwelling at Lot 41 (No 1) The Coombe, Mosman Park (in accordance with plans dated August 2017 and labelled A.01-A.05) is approved subject to the following conditions:
1.The development must comply with the approved plans.
2.A Construction Management Plan, that details how the construction of the development will be managed to minimise the impact on the surrounding area, shall be submitted to the Town of Mosman Park for approval prior to making an application for a Building Permit, and works may not commence until the approval is granted. Construction on and management of the site must comply with the approved Construction Management Plan.
3.No verge trees shall be removed or damaged, including unauthorised pruning, and any verge tree likely to be affected by the development shall be protected during construction in accordance with Mosman Park Council Policy 2.2.7 Street Trees.
4.The roofing material shall be other than zincalume metal deck, white or off-white colours.
5.All storm water collected on the subject land shall be retained onsite.
6.The approved development must be constructed so as to include screening in accordance with that shown on the approved plans for the development.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
14 OCTOBER 2019
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