Wenli Wang v North Sydney Council

[2018] NSWLEC 122

Land and Environment Court

New South Wales

Medium Neutral Citation:	Wenli Wang v North Sydney Council [2018] NSWLEC 122
Hearing dates:	3 and 13 August 2018
Date of orders:	22 August 2018
Decision date:	22 August 2018
Jurisdiction:	Class 1
Before:	Robson J
Decision:	See orders at [75]
Catchwords:	DEVELOPMENT APPLICATION – appeal against Council’s refusal of development application for demolition of existing two storey residential dwelling and construction of three storey residential dwelling – effect of a restrictive covenant – weight to be afforded to a covenant where it is set aside by planning instrument – assessment of view loss
Legislation Cited:	Conveyancing Act 1919 (NSW) Environmental Planning and Assessment Act 1979 (NSW) ss 3.16, 4.15 Land and Environment Court Act 1979 (NSW) s 39 North Sydney Development Control Plan 2013 North Sydney Local Environmental Plan 2013 cll 1.9A, 2.3, 4.3, 4.6
Cases Cited:	Challister Limited v Blacktown City Council (1992) 76 LGRA 10 Chehab v City of Canada Bay Council [2002] NSWLEC 220; (2002) 123 LGERA 431 Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214; (2010) 175 LGERA 433 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27 Donald Crone & Associates Pty Ltd v Bathurst City Council [1988] NSWLEC 73 (19 October 1998) G H Wainwright v Canterbury Municipal Council [1992] NSWLEC 96 (30 October 1992) Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248 Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 Tenacity Consulting v Warringah Council [2004] NSWLEC 140; (2004) 134 LGERA 23 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Category:	Principal judgment
Parties:	Wenli Wang (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: M Staunton with L Nurpuri (Applicant) P W Larkin SC with W Wu (Respondent)   Solicitors: Swaab Attorneys (Applicant) Hall & Wilcox Lawyers (Respondent)
File Number(s):	2017/00324035

Judgment

1. Wenli Wang (‘applicant’) appeals against North Sydney Council’s (‘Council’) refusal of Development Application 297/16 (‘DA’) for the substantial demolition of the existing dwelling and the construction of a three level dwelling house (‘proposed development’) on the land being Lot 9 in DP 24229, known as 19 Waverton Avenue, Waverton (‘site’).

2. The site is a battle-axe block with an area of 664.6 square metres. It is currently improved by a two storey dwelling house and double garage. The surrounding area is characterised by residential development in the form of dwelling houses, townhouses and residential flat buildings.

3. The site is burdened by a restrictive covenant, dated 23 April 1954, (‘covenant’) which limits buildings to being no more than two storeys in height and which also includes a provision requiring that no buildings, structures, trees, shrubs or plants be higher than three feet above the kerb above the road drain in the turning circle in Waverton Avenue. The covenant benefits lots 3, 4, 6, 13, and 14 in DP 24229. Lot 14, known as 17 Waverton Avenue, is the property most adversely affected by the proposed development.

4. Council provides seven contentions which it says warrant the DA’s refusal:

1. The proposed development breaches the height covenant applying to the site;

2. The proposed development does not demonstrate an ability to comply with the property interests of the lots benefitted by the covenant;

3. The proposed development has a devastating view impact on 17 Waverton Avenue;

4. The proposed development has an adverse impact on views from surrounding dwellings and from Waverton Avenue;

5. The building design has an adverse privacy impact on surrounding dwellings;

6. The proposed landscaping includes species with a mature height that could potentially obscure significant views; and

7. Approval of the proposed development would be contrary to the public interest.

5. As will be seen below, the primary issue at hearing concerned the impact of the proposed development upon the views presently enjoyed from 17 Waverton Avenue. In particular, the inclusion of a third storey in the proposed development will block much of the view presently enjoyed from the first storey of 17 Waverton Avenue.

6. At the commencement of the hearing on 3 August 2018, the Court conducted a site view, visiting the site as well as 15 and 17 Waverton Avenue, and hearing the concerns of four affected residents: Bruce Orr and Donald Orr, who co-own 17 Waverton Avenue; Cindy Chen, one of the occupants of 15 Waverton Avenue; and Ken Robertson, who spoke on behalf of Peter Dalton, an architect retained by the residents of 60 Eureka Street. The lattermost spoke largely in relation to concerns about constructability, particularly in relation to the proposed swimming pool.

7. Bruce Orr spoke about his concerns in relation to what he described as the “devastating” impact of the proposed development upon views from his residence, being concerned about the proposed structure as well as the trees envisaged for the driveway. As with each of the residents who spoke, his comments reflected more detailed concerns expressed in written objections previously provided to Council. He also stated that there were alternative design options available for the applicant, that the continuity of the view from 17 Waverton Avenue would be destroyed, and that he considered the enjoyment of the views from a “bedroom”, as is the case in the proposed development, is a “retrograde” use compared to the living room areas in his property which currently enjoy the views.

8. Donald Orr, a retired architect, spoke about the history of the site, and the fact that the covenant has existed since the site was first subdivided and sold in 1954. He said that his house at 17 Waverton Avenue was built in that year, and has been owned and enjoyed by his family since that time. He said the day-to-day effect of the proposed development on his home would be great, and noted particularly the loss of iconic views currently enjoyed from his living room and kitchen.

9. Ms Chen acknowledged that the loss of views to 15 Waverton Avenue was not as significant as that of 17 Waverton Avenue, but speaking as a recent purchaser, urged the Court to consider the reliance placed by purchasers upon the covenant, which she said should only be set aside with extreme caution. She also agreed with Bruce Orr that the use of the proposed structure that would block the views as a bedroom was unreasonable, and did not constitute reasonable view sharing.

10. The Court also received into evidence a large number of other objections that addressed both the plans presently before the Court as well as two previous iterations of the proposed development.

Legislative context

11. The site is zoned R3 Medium Density Residential under the North Sydney Local Environmental Plan 2013 (‘LEP’). The proposed development is permissible with consent in the zone. Clause 2.3(2) of the LEP requires the Court to have regard to the zone objectives, which are as follows:

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

•   To provide a variety of housing types within a medium density residential environment.

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

•   To encourage the development of sites for medium density housing if such development does not compromise the amenity of the surrounding area or the natural or cultural heritage of the area.

•   To provide for a suitable visual transition between high density residential areas and lower density residential areas.

•   To ensure that a high level of residential amenity is achieved and maintained.

12. Clause 4.3 provides a maximum building height development standard on the site of 8.5 metres. It is agreed that the proposed development does not exceed this development standard.

13. The objectives of the height limit development standard are contained in cl 4.3(1) which provides:

4.3   Height of buildings

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

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

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

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

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

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

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

…

14. North Sydney Development Control Plan 2013 (‘DCP’) also applies to the land. I shall make more detailed reference to particular provisions of the DCP when assessing the merits of the proposed development.

The covenant

15. The existence and effect of the covenant was a matter of significant concern both to Council and a number of the objectors. It is agreed that the proposed development does not comply with the terms of the covenant. If there were no statutory instrument setting it aside, the covenant would be a jurisdictional bar to the Court upholding the appeal.

16. However, cl 1.9A of the LEP provides circumstances in which covenants (amongst other things) can be set aside:

1.9A   Suspension of covenants, agreements and instruments

(1)   For the purpose of enabling development on land in any zone to be carried out in accordance with this Plan or with a consent granted under the Act, any agreement, covenant or other similar instrument that restricts the carrying out of that development does not apply to the extent necessary to serve that purpose.

(2)   This clause does not apply:

(a)   to a covenant imposed by the Council or that the Council requires to be imposed, or

(b) to any prescribed instrument within the meaning of section 183A of the Crown Lands Act 1989, or

(c)   to any conservation agreement within the meaning of the National Parks and Wildlife Act 1974, or

(d)   to any Trust agreement within the meaning of the Nature Conservation Trust Act 2001, or

(e)   to any property vegetation plan within the meaning of the Native Vegetation Act 2003, or

(f) to any biobanking agreement within the meaning of Part 7A of the Threatened Species Conservation Act 1995, or

(g)   to any planning agreement within the meaning of Division 6 of Part 4 of the Act.

(3)   This clause does not affect the rights or interests of any public authority under any registered instrument.

(4) Under section 28 of the Act, the Governor, before the making of this clause, approved of subclauses (1)–(3).

17. The authority to make clauses such as cl 1.9A is found in s 3.16 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’) and was previously found in s 28 of that Act. Section 3.16 provides:

3.16   Suspension of laws etc by environmental planning instruments (cf previous s 28)

(1)   In this section, regulatory instrument means any Act (other than this Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made.

(2)   For the purpose of enabling development to be carried out in accordance with an environmental planning instrument or in accordance with a consent granted under this Act, an environmental planning instrument may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in that environmental planning instrument shall not apply to any such development or shall apply subject to the modifications specified in that environmental planning instrument.

(3)   A provision referred to in subsection (2) shall have effect according to its tenor, but only if the Governor has, before the making of the environmental planning instrument, approved of the provision.

(4)   Where a Minister is responsible for the administration of a regulatory instrument referred to in subsection (2), the approval of the Governor for the purposes of subsection (3) shall not be recommended except with the prior concurrence in writing of that Minister.

(5)   A declaration in the environmental planning instrument as to the approval of the Governor as referred to in subsection (3) or the concurrence of a Minister as referred to in subsection (4) shall be prima facie evidence of the approval or concurrence.

(6) The provisions of this section have effect despite anything contained in section 42 of the Real Property Act 1900.

18. In Challister Limited v Blacktown City Council(1992) 76 LGRA 10 (‘Challister’), Talbot J considered the effect of a statutory provision which was in substantially similar terms to cl 1.9A of the LEP at 23-4:

The purpose of s 28 is to overcome any impediment placed on development which is to be carried out in accordance with Pt IV of the Environmental Planning and Assessment Act. It recognises that the ultimate regulatory provisions in relation to the carrying out of development resides in Pt IV of the Act. If those provisions are complied with either without consent but pursuant to an environmental planning instrument or in accordance with a development consent then the regime of the Environmental Planning and Assessment Act may prevail over any other act or any rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made if it is so provided in an environmental planning instrument with the approval of the Governor.

Section 28 was enacted for the purpose of enabling development to be carried out. To that end an environmental planning instrument may include the type of provision of which cl 26 is an example. In order to serve the purpose of enabling development to be carried out a regulatory instrument such as a restriction or covenant shall not apply to development which is carried out in accordance with an environmental planning instrument or in accordance with a consent granted under the Environmental Planning and Assessment Act.

Section 28(2) removes any bar to the development being carried out. It has no effect on whether development consent should be granted. The terms of the restrictive covenant are not a bar to the grant of a development consent. If a development consent is granted to permit a use which is in conflict with the terms of the restrictive covenant it does not follow that the development consent will be invalid. Neither does it follow that the developer must make application to the Supreme Court to have the covenant released varied or modified if the person having the power to release vary or modify the covenant refuses to co-operate. A close examination of s 28(2) shows that it is this last step of releasing varying or modifying the covenant to which the subsection is directed.

The opportunity to make such a provision in an environmental planning instrument is intended to achieve a result whereby development which satisfies the criteria laid down by the planning legislation may proceed notwithstanding any constraint imposed by other regulatory instruments. The Parliament recognised the significance of the extent of this power by subjecting its exercise to the approval of the Governor and in some cases to the concurrences of the relevant Minister.

19. This approach was endorsed by the Court of Appeal in Coshott v Ludwig (1997) 8 BPR 15,519; (1997) NSW ConvR 55-810 (‘Coshott’). In that case, Meagher JA, with whom Giles AJA and Simos AJA agreed, said:

The self-evident purpose of s 28 of the Act and cl 32 of LEP27 is to nullify and remove all obstacles to the planning principles decided on by the Council or the Minister. In this context s 28 of the Act is stating, in effect, "an environmental planning instrument may state what documents should be disregarded", and cl 32 of LEP27 is stating that one type of document to be disregarded is a document creating a restrictive covenant. As to the argument about the words "by or under whatever authority made", I am of the view that, although chosen without conspicuous felicity, they mean no more than "howsoever created".

20. In Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833; (2011) 184 LGERA 248, Slattery J cited Challister and Coshott in rejecting the plaintiffs’ estoppel claim in respect of an apprehended breach of a covenant. At [109], his Honour further summarised the legal position:

More recently in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Limited & Ors[2010] NSWCA 214 at [41] the Court of Appeal affirmed (Tobias JA, with McColl JA and Handley AJA agreeing) the statement in [Coshott] that the self evident purpose of [ EPA], s 28 and equivalents of Ballina LEP, Regulation 29 "is to nullify and remove all obstacles to the planning principles decided on by the Council or the Minister". These principles have been extensively applied by the Land and Environment Court, which has generally rejected arguments that EPA,s 28 should be narrowly construed and affirming the idea that s 28 is designed to facilitate development and overcome impediments placed on development so as to avoid sterilisation of land: Coles Supermarkets Australia Pty Limited v K-Mart Australia Limited[1996] NSWLEC 135 per Pearlman J; and G.H. Wainwright v Canterbury Municipal Council[1992] NSW LEC 96 per Bignold J. The principles have also been applied by single judges of this Court in relation to equivalent provisions in Local Environmental Plans: see Owens & Anor v Longhurst & Ors[1998] NSWSC 387, Young J. Another example is Natva Developments Pty Limited v McDonald Bros Pty Limited & Ors[2004] NSWSC 777…

21. Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2010] NSWCA 214; (2010) 175 LGERA 433 was overturned in Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492; [2011] HCA 27, but on the limited basis that the Governor had not provided consent to the provision overcoming the restrictive covenant as was required by s 28 (now s 3.16) of the EPA Act.

22. In view of this authority, I consider that it is clear that the covenant cannot represent a jurisdictional bar to consent being granted to the DA. However, whilst Council recognises this, it submits that the covenant is nevertheless a mandatory consideration in the appeal by virtue of s 39(4) of the Land and Environment Court Act 1979 (NSW) (‘LEC Act’). Section 39 of the LEC Act relevantly provides:

39   Powers of Court on appeals

(1)   In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)   In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)   An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)   In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

…

23. It is agreed that the covenant fits the description in s 39(4) of the LEC Act of “an instrument made under” a relevant Act, in this case the Conveyancing Act 1919 (NSW). In these circumstances, the essential dispute between the parties with respect to the covenant is what weight should be accorded to the covenant.

23. The weight to give an instrument set aside by clauses similar in nature to cl 1.9A of the LEP has been previously considered by the Court.

24. In Donald Crone & Associates Pty Ltd v Bathurst City Council [1988] NSWLEC 73 (19 October 1998) (‘Donald Crone’), Cripps CJ of LEC considered a covenant the effect of which was to inhibit development on the council’s own land. His Honour held:

The existence of the covenant and the agreement is, in my opinion, a matter which can be taken into account by the determining authority pursuant to s 90 of the Environmental Planning and Assessment Act in the course of its determination whether or not development consent should be granted. However, once development consent has been granted, the agreement and the covenant cannot apply to that for which development consent was granted. For reasons which I shall give, I have come to the conclusion, taking into account all relevant matters including the covenant and the agreement abovementioned, that development consent should be granted subject to conditions…

26. One of the considerations in Donald Crone was that the effect of the covenant was to prevent development of the type envisaged by the planning instrument. In those circumstances, Cripps J noted that “the covenant cannot apply to this development”.

27. In G H Wainwright v Canterbury Municipal Council [1992] NSWLEC 96 (30 October 1992) (‘Wainwright’), Bignold J was asked to determine as a preliminary question, amongst other things, what weight should be applied to a restrictive covenant in circumstances where it was to be set aside by virtue of a clause in the nature of cl 1.9A in the LEP:

This leaves the final question raised in the course of argument. It is not obviously a question of law. Any question concerning the weight to be accorded to any evidence is a question of fact for the tribunal of fact.

However since the parties have directed attention to a passage in the judgment in Donald Crone which, with great respect, is capable of giving rise to some misunderstanding, I think that it may be helpful to the parties and to the Assessor who is likely to hear the present s 97 appeal if I seek to elucidate the matter.

As will appear, the real question here in issue, concerns not so much the weight to be given to the fact of the existence of the restrictive covenant, but whether it is a relevant consideration in terms of s 90 of the EPA Act. This latter question of course, raises a question of law.

28. His Honour considered the decision in Donald Crone and concluded:

In these circumstances I would prefer to say, in the interests of simplicity, that the existence of the restrictive covenant is of so little weight as to not be a relevant consideration.

29. In Chehab v City of Canada Bay Council [2002] NSWLEC 220; (2002) 123 LGERA 431 (‘Chehab’), Pain J considered at [37]-[38] the weight that should be given to a restriction as to user, of which the council was the beneficiary:

[37] If the answer to question 3 or 4 is “yes” must the Court, in ascribing the weight to be attached to the instrument, give it “proper genuine and realistic consideration” or “significant weight”? The council argued that it was appropriate for a judge of the Court to make a ruling on the appropriate weight to be given to the instrument in this matter. It submitted the restriction as to user should be given significant weight. The applicant submitted this was a question of evidence and not a question of law. It is not appropriate that I make any findings as to the weight which should be accorded to the restriction as to user by the Court when this matter proceeds to its merit hearing. In G H Wainwright v Canterbury Municipal Council (unreported, Land and Environment Court, NSW, Bignold J, No 10351 of 1992, 30 October 1992) Bignold J was required to answer a number of questions of law in relation to a restrictive covenant, one of which was “What, if any, weight should be accorded to the restrictive covenant in determining the development application, in accordance with s 90 of the EP&A Act?” (now s 79C). His Honour held that this was not a question of law but a question of fact for the tribunal of fact to decide. I agree and decline to answer question 5 as it does not disclose a question of law.

[38] I do note, however, that the weight which should be attributed to the restriction as to user will depend on matters such as how the restriction as to user has been enforced in the past. In other words, a Court is likely to give less weight to a restriction as to user that the council has allowed to be modified, varied or revoked numerous times in the past, than one which has been strictly enforced by the council.

30. The applicant submits that the Court is not assisted by the decision in Chehab as it relates to the question of whether the Court was to stand in the shoes of the council with regard to the restriction of which it was the beneficiary. The applicant submits that the Court should apply the approach of Bignold J in Wainwright and give the covenant little, or no, weight.

31. Council submits, having regard to Pain J’s comments at [38] in Chehab, that matters of weight are questions of fact to be decided by the decision maker. Council also submits that, unlike the situation in Donald Crone where the effect of the covenant was to undermine the objectives provided for the land by the relevant planning instruments, the restrictive covenant in this case can have a sensible operation alongside the planning scheme provided in the LEP and the DCP.

32. Having considered the evidence, the detailed submissions and the relevant case law, I find that it is clear that if I am otherwise satisfied that the appeal should be upheld, the covenant does not preclude the Court from granting consent to the proposed development. However, I accept that the existence of the covenant is a matter which I may take into account and the fact that the existing development in the locality of the site is consistent with the terms of the covenant is a matter favourable to Council’s case.

The merits contentions

33. Mr Larkin, senior counsel for Council, with whom Mr Wu appears, informed the Court that of the seven contentions articulated in Council’s statement of facts and contentions (summarised above at [4]), Council no longer has concerns with respect to privacy (although that was a matter of some concern to the resident objectors) and has agreed that the question of landscaping can be adequately resolved in the conditions of any consent. Mr Larkin also advised that in the circumstances of this case, Council is of the view that the seventh contention, relating to whether the proposed development is in the public interest, is a matter which “follows” the other contentions such that it is not in its own right an independent ground for the refusal of the DA.

34. Consequently, the grounds relied upon by Council in this appeal are contentions 1 to 4 in its statement of facts and contentions, each of which relates to view loss. Contentions 1 and 2 relate to the effect of the DA’s non-compliance with the covenant, whilst contentions 3 and 4 relate to the amenity impacts upon 17 Waverton Avenue.

35. Contention 4 was originally wider in scope, relating to concerns about the amenity impacts on Waverton Avenue itself and surrounding dwellings, but in response to a redesign of the proposed development, Council no longer harbours concerns in relation to the effect from Waverton Avenue itself, and, although the views from 15 Waverton Avenue are somewhat affected, Council does not contend that this is an independent reason to refuse the DA.

Approach to the assessment of view loss

36. An assessment of the proposed development was undertaken by expert town planners retained for each of the parties. Jeremy Swan was retained by the applicant and George Youhanna was retained by Council. Their findings are encapsulated in a Joint Town Planning Experts’ Report, and each of them gave oral evidence at the hearing.

37. In his assessment of the impact, Mr Youhanna placed reliance upon the objectives of the building height development standard contained in cl 4.3(1) of the LEP, extracted above at [13]. Objective (b) in that clause is “to promote the retention and, if appropriate, sharing of existing views”, an objective which Mr Youhanna contended that the proposed development does not meet, especially with regard to the word “retention”.

38. The difficulty with the approach of Mr Youhanna as a matter of statutory construction is that the objectives relate to the setting of a development standard (the 8.5 metre height limit) with which it is agreed that the proposed development complies. The applicant, through Mr Staunton of counsel with whom Ms Nurpuri appears, submits that the objectives are taken to have been achieved where the proposed development complies with the standard. Mr Larkin indicated that on considered reflection Council concurs with this view and consequently submits that the objectives are of limited assistance.

39. I agree with the position of the parties’ representatives in relation to the application of the objectives. Although the maximum set by a development standard is not a right, a development is taken to comply with the objectives of a standard where compliance with the standard is achieved. This is made clear by the chapeau of cl 4.3(1) which provides that what follows are the “objectives of this clause” as opposed to the objectives of the development. The clause is the development standard set by cl 4.3(2).

40. The objectives of the standard have relevance where an applicant seeks to vary the development standard by way of a request pursuant to cl 4.6. The consent authority must then be satisfied that the objectives of the clause are met notwithstanding the breach of the development standard. Such a request is not required in the present case as the proposed development complies with the 8.5 metre building height development standard.

41. Accordingly, I find that the objectives of the development standard are of limited assistance in the present case. In those circumstances it is not necessary to make a finding as to whether the objective of promoting “the retention and, if appropriate, sharing of existing views” is achieved by the proposed development.

42. The approach of Mr Swan in the joint report placed reliance upon the planning principle developed by Senior Commissioner Roseth in Tenacity Consulting v Warringah Council [2004] NSWLEC 140; (2004) 134 LGERA 23 (‘Tenacity’), which, as I will consider further below, is also discretely incorporated into the DCP. At [25]-[29], the Senior Commissioner developed a four step test to assess view loss:

[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.

43. Applying the four step process in Tenacity to the proposed development, Mr Swan concluded that views of the Harbour Bridge, the city skyline and the Anzac Bridge are iconic views and noted that whilst some of these views are lost from the ground floor living areas in 17 Waverton Avenue, all of the views are retained from the first floor bedrooms. As a whole, Mr Swan assessed the impact as “minor” to “moderate”.

44. In applying the fourth step of Tenacity, Mr Swan noted that the proposed development complies with the building height limit and envelope controls in the LEP; that the proposed development’s six metre eastern side setback helps to provide a view corridor ensuring that views of the Harbour Bridge are retained from the ground floor dining room, kitchen and rear yard; that the first floor of the proposed development has had its floor plate limited from what was originally proposed in order to facilitate the sharing of views; that 17 Waverton Avenue is likely to be redeveloped in the future; and that skilful design of the proposed development has reduced the view loss from 17 Waverton Avenue.

45. Mr Youhanna opined that the Tenacity planning principle is of limited assistance in the present case because it is directed towards situations in which the relevant planning instrument contains objectives encouraging view sharing, as opposed to view retention. Given my finding in relation to the role of the objectives in the LEP, I do not place significant reliance on Mr Youhanna’s comments in that regard.

46. Although he did not agree that Tenacity is directly applicable, Mr Youhanna went on to consider the application of the principle to the proposed development, opining that this was “useful in distilling some key issues relevant to the assessment of the view impact”.

47. Mr Youhanna opined that the views of the Harbour Bridge, the city skyline, Barangaroo and Darling Harbour are “iconic and highly valuable” and that the impact of the proposed development on the existing views from the ground floor living areas should be described as “devastating”, although he agreed that the impact on views from the upper level bedrooms is negligible.

48. In relation to the third step, Mr Youhanna opined that Mr Swan has not given appropriate weight to the importance of the ground floor living areas in reaching his conclusion about the impact of the proposed development on 17 Waverton Avenue. Mr Youhanna opined that “the loss of highly valued, panoramic and iconic views from the ground floor living areas to accommodate a 3rd storey bedroom… [is] entirely inappropriate and inequitable in terms of the notion of view sharing”.

49. Mr Youhanna was of the view that the fourth step of the Tenacity planning principle is the least applicable to the present case because it is predicated upon the desirability of view sharing rather than view retention, but opined that even if the test was applied in the usual way it would not be met because more skilful design would afford the applicant the same floor area and amenity without the third storey.

50. In that regard, the Court was taken in some detail to plans prepared by the residents of 17 Waverton Avenue and endorsed by Anne Colville, an architect they retained (‘Colville plan’). By utilising space on the south-east corner of the site and including a section of excavation to provide for a bedroom on a lower floor, the Colville plan would allow the applicant a similar amount of floor space as achieved in the proposed development without impacting upon 17 Waverton Avenue’s views.

51. The applicant submits that the Colville plan does not afford the same level of amenity as the proposed development and that it exceeds the maximum height limit at one point. Council does not rely upon the Colville plan except as an indication that there are alternative options available to the applicant to achieve a level of floor space comparable to the proposed development without the view from 17 Waverton Avenue being affected.

52. Council submits that the applicant’s approach to Tenacity is to treat it prescriptively as if it were a statute as opposed to a principle to guide consideration. In particular, Council submits that the applicant’s approach to the fourth step of Tenacity is circular, in that in arguing no other development could provide the same amenity, it presupposes a right to the proposed development.

53. Council submits that this is not the application Senior Commissioner Roseth intended the planning principle in Tenacity to have, and that even if one were to read the fourth step as being akin to a statute, it merely provides that in the circumstance that similar amenity cannot be achieved in another design, the development proposed would “probably” be considered acceptable. Council submits that nothing in Tenacity detracts from the ordinary merit assessment of the proposed development under s 4.15 of the EPA Act which requires consideration of the impact of the proposed development.

54. The applicant accepts that the height development standard is not a right to develop to 8.5 metres, but submits that the Court should have regard to the fact that this is not a case where the applicant has sought to “max out” the limits. The applicant submits that save for one small section, the proposed development is comfortably within the height and building envelope controls and notes that the proposed development as currently designed has a lesser impact on the view from 17 Waverton Avenue compared to that which was originally proposed. The applicant submits that this is an example of the “skilful design” referred to in Tenacity.

The DCP

55. In addition to the EPA Act, the LEP, and the planning principle in Tenacity, the DCP is also of relevance in assessing the proposed development. The Court of Appeal has held that a DCP should be a “focal point” when assessing a development application: Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 at [77].

56. The principles relating to the consideration of DCPs were summarised by McClellan CJ of LEC in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 at [87]:

Consideration was also given to the approach to be adopted to a development control plan by the Court of Appeal in North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 and in the later decision North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23. These decisions, and others, provide the principles relevant to consideration of development control plans. In summary they are:

•   A development control plan is a detailed planning document which reflects a council’s expectation for parts of its area, which may be a large area or confined to an individual site. The provisions of a development control plan must be consistent with the provisions of any relevant local environmental plan. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental plan.

•   A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation.

•   A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied.

•   A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning outcome consistent with other policies.

•   Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property.

57. Section 1.3.6 in Part B of the DCP provides:

1.3.6   Views

Due to North Sydney’s sloping topography and proximity to Sydney Harbour, views and vistas comprise special elements that contribute to its unique character and to the amenity of both private dwellings and the public domain.

New development has the potential to adversely affect existing views. Accordingly, there is a need to strike a balance between facilitating new development while preserving, as far as practicable, access to views from surrounding properties.

When considering impacts on views, Council will generally not refuse a development application on the grounds that the proposed development results in the loss of views, where that development strictly complies with the building envelope controls applying to the subject site.

Objectives

O1   To protect and enhance opportunities for vistas and views from streets and other public places.

O2   To encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP.

Provisions

P1   Development should be designed such that views from streets and other public places, as identified in the relevant area character statement (refer to Part C of the DCP), are not unreasonably obstructed.

P2   Development should be designed to maximise the sharing of views from surrounding properties and public places.

P3   Ensure that existing and proposed dwellings will have an outlook onto trees and sky.

P4   Where a proposal is likely to adversely affect views from either private or public land, Council will give consideration to the Land and Environment Court’s Planning Principle for view sharing established in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. The Planning Principle is available to view on the Land and Environment Court’s website ( start="58">

Section 10 of Part C in the DCP provides specific provisions for the Waverton/Wollstonecraft Planning Area. Section 10.0, which applies to the entire planning area, provides the following criteria under the heading “Quality Built Form”:

Quality Built Form

•   any development reflects and reinforces the existing distinctive built form/landscape areas and distribution of accommodation types

•   cohesiveness is achieved in the area and through landscaping and street tree planting

•   development in foreshore areas is carefully designed to consider the existing topography and not disrupt views from neighbouring properties

•   significant views from lookouts and other vantage points are not obscured by structures or landscaping

•   man-made features such as the railway cutting at Waverton Station and the tank cuttings on the BP site are maintained as local landmarks important to the community

•   educational establishments are oriented to the public domain to provide increased surveillance and activation

59. Section 10.2 makes provisions for a region within the Planning Area identified as the “Upper Slopes”. Both the site and 17 Waverton Avenue are located within the “Upper Slopes” region. Section 10.2.1 relevantly provides:

10.2.1   Significant Elements

…

Views

P7   The following views and vistas are to be preserved and where possible enhanced:

(a)   Vistas to Sydney Harbour along Crows Nest Road are maintained.

(b)   Remaining views from Brennan Park are maintained.

…

60. It is agreed that P7 in section 10.2.1 does not require views from 17 Waverton Avenue to be maintained. There is some disagreement as to whether the site and 17 Waverton Avenue fall within the descriptor “foreshore areas” such that the dictate in section 10.0 “to consider the existing topography and not disrupt views from neighbouring properties” applies. The applicant submits that the site and 17 Waverton Avenue are in the “Upper Slopes” and therefore not in the foreshore areas, but Council observes that the term “foreshore areas” is not specifically defined and submits that the objective should apply to the proposed development.

61. The applicant draws particular attention to the passage in section 1.3.6 in Part B that provides “[w]hen considering impacts on views, Council will generally not refuse a development application on the grounds that the proposed development results in the loss of views, where that development strictly complies with the building envelope controls applying to the subject site”. Council submits that this is no more than a general statement of principle similar to the fourth step of Tenacity.

62. Further, Council notes that P2 in section 1.3.6 provides that “[d]evelopment should be designed to maximise the sharing of views from surrounding properties and public places”, a provision which Council contends the proposed development does not meet in circumstances where the site already enjoys views and seeks to improve them by affecting the views from 17 Waverton Avenue.

Conclusions on view loss

63. For the reasons that follow, I have determined that the appeal should be refused.

64. The fact that the development standards in the LEP are met means that the DA has passed through the jurisdictional gate to the merits assessment process in s 4.15 of the EPA Act. The maxima provided for in the development standards are not rights to develop to those levels, but I do take note of the fact that the majority of the proposed development is comfortably within the building height and envelope provided for in the LEP.

65. Section 1.3.6 of Part B in the DCP provides guidance in relation to the assessment of view loss. Whilst the section provides “Council will generally not refuse a development application on the grounds that the proposed development results in the loss of views, where that development strictly complies with the building envelope controls applying to the subject site”, this principle is subject to the objectives provided underneath. Of relevance in the current matter is O2 which provides that an objective of section 1.3.6 is “[t]o encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP.”

66. The provisions of section 1.3.6 of particular relevance in the current appeal are P2 and P4, which provide that “[d]evelopment should be designed to maximise the sharing of views from surrounding properties and public places”, and that Council will apply the planning principle in Tenacity, respectively. Section 1.3.6 taken as a whole indicates that whilst development is to be facilitated in accordance with the controls, view “sharing” is an important objective to be taken into account.

67. In addition to being specifically incorporated into the DCP, the application of planning principles such as the one found in Tenacity was discussed and endorsed by Tobias JA, with whom Beazley and Basten JJA agreed, in Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at [96]:

My only qualification to the foregoing [comment that there is no place for “the so-called principle of consistency in administrative decision-making” in adversarial proceedings in the Land and Environment Court], at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective. This has been recognised by the Commissioners of the Land and Environment Court (see [16] above) and is reflected in the planning principles articulated by Commissioner Watts in [81] of his judgment (see [15] above)... But it does not follow that a consistent application of those principles results in the same outcome. That would depend upon the particular facts of each case as well as upon the evidence called by the parties to support the outcome, based on those principles, for which each contends...

68. Applying the principles in Tenacity, first, I accept that the views that would be lost from 17 Waverton Avenue if the proposed development were to be built meet the description of “iconic”.

69. Applying the second and third steps, I note that the views lost are from the rear boundary and affect the principal living areas of 17 Waverton Avenue. The views are largely retained from the upper storey bedrooms, but I accept in accordance with Senior Commissioner Roseth’s comments in Tenacity that views lost from living areas and kitchens are more serious impacts given the amount of time spent in them. With that in mind, I do not accept Mr Swan’s characterisation of the view loss as “minor” or “moderate” and consider that the description “devastating” appropriately reflects the view loss experienced from 17 Waverton Avenue.

70. Applying the fourth step of Tenacity, I repeat that the proposed development complies with the development standards in the LEP and is therefore more reasonable than a development which would have breached them. However, I do also note that there is evidence in the form of the Colville plan that a similar amount of floor space could be provided by a design which reduces the effect on the view from the surrounding properties.

71. I consider there is force in the submission of Council that the applicant has taken a circular approach to the fourth step of Tenacity which presupposes a right to the level of amenity achieved by the proposed development. Whilst it is true that a redevelopment similar to that provided in the Colville plan would not provide the same amenity as the proposed development, it would provide a very high level of amenity and enjoy impressive views.

72. Given the importance placed upon view “sharing” by the DCP, I have given some weight to the fact that the site as currently developed enjoys iconic and panoramic views. The reasonableness of the proposed development should be seen in that light and I find that it is a factor which makes the DA less reasonable in the terms envisaged by the fourth step of Tenacity.

73. Finally, although I have not given it determinative weight, I take into account the existence of the covenant. Whilst cl 1.9A of the LEP provides that the covenant may be displaced if a development application is otherwise in accordance with the LEP, the emphasis that the planning regime places on the concept of view sharing leads me to the view that it is appropriate to take some note of the fact that development in accordance with the terms of the covenant was understood to allow for appropriate view sharing at the time the lots involved in this appeal were first subdivided in 1952.

74. Although I do not elevate the covenant as a consideration which would displace what is provided by the planning regime, I do consider that the covenant is one factor indicative of the fact that appropriate view sharing in the locality of the site is achieved by development generally in accordance with the status quo.

Orders

75. The Court orders that:

1. The appeal against the refusal of Development Application 297/16 is dismissed.

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Decision last updated: 23 August 2018