Land and Environment Court New South Wales Medium Neutral Citation: Jakob v Woollahra Municipal Council [2021] NSWLEC 1667 Hearing dates: 5 & 19 August 2021 Date of orders: 12 November 2021 Decision date: 12 November 2021 Jurisdiction: Class 1 Before: Dixon SC Decision: See [90] below. Catchwords: DEVELOPMENT APPLICATION – alterations and additions to existing dwelling – change to existing built form including the addition of a new level – contravention of the height of buildings development standard – consideration of cl 4.6 written request to vary the height of buildings development standard – concerns relating to view loss Legislation Cited: Environmental Planning and Assessment Act 1979, s 1.3 Environmental Planning and Assessment Regulation 2000, cl 64 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 55—Remediation of Land State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, cll 16, 25, 26 Woollahra Local Environmental Plan 2014, cll 1.2, 4.3, 4.6, 6.4 Cases Cited: Bettar v Council of the City of Sydney [2014] NSWLEC 1070 Four2ive Pty Ltd v Ashfield Council [2015] NSWLEC 90 Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118 Rose Bay Marina Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1046 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 Texts Cited: Land and Environment Court, 'COVID-19 Pandemic Arrangements Policy' Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Alexandra Lee Jakob (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Galasso SC (Applicant) P Rigg (Solicitor) (Respondent) Solicitors: Hones Lawyers (Applicant) Peter R Rigg (Respondent) File Number(s): 2020/336336 Publication restriction: Nil Judgment Introduction 1. These proceedings arise following the Woollahra Municipal Council's refusal of a development application (No. DA 176/2020) (DA) seeking approval for alterations and additions to an existing dwelling house at 50 Wolseley Road, Point Piper – to constitute three apartments (site). 2. In that respect, the applicant contends that the proposal involves a relatively minor, albeit not insignificant, change to the existing built form involving the addition of a new level. More particularly, the removal of an existing staircase on the northern portion of the site, and its replacement with an architecturally featured staircase, but otherwise retention of the building to the extent that it can be seen from the harbour (Amended application – Exhibit A). 3. There is one central issue in the case. That issue is the acceptability of the degree of view loss from Unit 1/48 Wolseley Road which is located behind the development site. The applicant submits that there are two aspects about view loss. The first is that the substantial part of the view loss is from an element of the development that is entirely compliant with the Council's building height control. This is the area coloured green on the plan, Annexure D, in the planners' joint report (Exhibit 3) reproduced below: 1. The elements of the development which exceed the permissible height control and the subject of the applicant's cl 4.6 written request (Exhibit S) are on the southern boundary, facing the harbour to the west and coloured blue and red. Specifically, the leading edge of the development closest to the harbour. The second aspect to note is that the green-shaded portion is significantly lower at 6.16m than the maximum height control of 9.5m (Exhibit 3, Annexure D). 2. Ultimately, the applicant submits this application requires an assessment of the view loss generated by a generally compliant building form, which could be 3.3m higher, and a smaller component, driven by the slope of the land, on the leading edge of the third level. While these matters of difference do not take away from the fact of view loss, it is submitted they are matters which, on the applicant's case, justify the view loss. That is: to the extent that there is non-compliance; it is minor relative to the compliant portion; and that overall, the proposed development is skilfully designed not seeking to maximise the full building height potential of the site. 3. In all other respects, the applicant submits, on the evidence of the planners, Mr Brett McIntyre (for the Council) and Mr Tony Moody (for the applicant) that the proposed development satisfies the relevant planning controls – apart from side setback non-compliances. In that regard, the applicant emphasises that the side boundary setbacks of the new built form match the existing. The Woollahra Development Control Plan 2015 (DCP) control provides that the setback ought to be 6m. However, the applicant contends that compliant setbacks would push the whole of the new building into the view of the most affected property behind, whereas the proposed setback improves the view to No 48 Wolseley Road. 4. The Council's case, while very much focused on the adequacy of the cl 4.6 written request and view loss, also emphasises the wider planning objectives. For instance, the aims of the Woollahra Local Environmental Plan 2014 (LEP) in cl 1.2. The Council's advocate, Mr Rigg, submitted that in an area such as Wolseley Road, Point Piper that the equity entitlements for such valuable parcels of land, rely heavily upon a planned and coordinated future for that area. Moreover, that Wolseley Road is an iconic street in Sydney, with an iconic amenity, arising from a certain equity that each property has and an expectation that such amenity will be protected. In that regard, he said that the Council's controls promote, consistent with the aims of the LEP cl 1.2(i), 'a high standard of design', both in the public domain and also in the private domain; and seek to ensure that there is a protection of the desired future character of the area. 5. While the Council accepts that there are benefits flowing from the proposed development from the public domain, particularly the harbour, it submits that when I consider the obligations in terms of cl 4.6(4)(ii), the focus to be applied is that which relates to the unacceptable impacts of the breach on the public interest. The proposal must be consistent with the objectives of the development standard and the zone and that is the area where the Council contends that the application is lacking. A better design would remove that western edge of the development on its fifth storey which is assessed to be about a 38% departure from the height of buildings development standard and encroaching into the iconic views to the west. The hearing 1. The hearing was conducted via Microsoft Teams in accordance with the Court's COVID-19 Pandemic Arrangements Policy and included a site view. The inspection was useful because the applicant had earlier erected height poles to mark out the proposal which I then viewed from the objector's unit at 1/48 Wolseley Road, and the communal area of that building. Objectors' evidence 1. The owner of Unit 1/48 Wolseley Road gave evidence from his residence in Hong Kong via Microsoft Teams. He gave evidence that he has worked in commercial property in Australia and overseas for some 37 years. He said that he purchased the ground floor unit after the applicant's DA had been lodged on assurances from his property lawyers that the Council's R3 zoning, and height controls and various covenants on title ensured his existing amenity. He intends to retire in Sydney after COVID and live permanently at the unit. He believes that the proposed additions will significantly impact the "gun barrel" 180-degree harbour views he presently enjoys from his lounge room and kitchen area. Views, depending on the angle, to the Opera House, the CBD, the Double Bay wharf and the ferries moving in and out of an active land-water interface. He is also concerned about the impacts on public views from the apartment block's common area adjoining the eastern boundary of the development site. View impacts which he attributes to the building's non-compliance with both the LEP and DCP controls. 2. The owner of Unit 1/48 Wolseley Road rejects the suggestion that his view will be enhanced by the removal of the tree on the development site, as suggested by the applicant. Rather than enhance his view, he is of the opinion that the proposed development will block an iconic view in "the most expensive street in Australia". 3. Together with the other unit owners of 48 Wolseley Road, the owner of Unit 1 engaged Mr Wayne Collins, a consultant planner from Colco Consulting Pty Ltd to prepare its written objection to the amended application and dated 15 July 2021. At the hearing, Mr Collins gave short oral evidence repeating the views expressed in that written objection (Exhibit 2). He emphasised the issue of view loss impacts for Unit 1, and the common property and the deficiencies in the cl 4.6 written request lodged in respect of the height breach. Mr Collins takes issue with the Council's planning assessment of the view loss as "moderate" and described that assessment as "significantly understating the view impact" to Unit 1 which he has assessed as a "significant loss of iconic views from our clients' apartment … and the view of all apartment owners in the use and amenity of the strata common garden area" (Exhibit 2). 4. The Court also received oral evidence from the owner of Unit 2/48 Wolseley Road. She objects to the impact on the view from Unit 1, and the communal garden – in particular the loss of a view to the water interface, boats moored and the sailing craft. While she accepted that the private view from her apartment was not impacted, she was concerned about the public view from the communal garden. 5. She also raised concern about potential noise from the entertaining areas of the development given its close proximity No 48. With respect to the most recent amendments to the development, she said that they had "ticked a lot of small boxes that the council and committee marked as non-compliant but it hasn't changed any of the really big plans that affect – both the public and the private amenity" (Tcpt, 5 August 2021, p 4(34-37)). The other nine written objections, including the owners of 52A and 54 Wolseley Road, raised similar concerns about view impacts arising from the bulk and scale of the proposal. Facts 1. The site is a battle-axe lot which is located on the western side of Wolseley Road with an eastern frontage to Wolseley Road and a western (rear) boundary to Blackburn Cove. The access handle to the site serves as a 'pedestrian only' access with vehicular access to the site via a shared driveway over the access handles of Nos 42 and 42A Wolseley Road. 2. The site falls steeply from Wolseley Road to Blackburn Cove by approximately 26m. 3. The eastern frontage of the site measures 3.05m in width, the irregular rear western boundary to Blackburn Cove measures approximately 26m in length, the north-western side boundary measures 54.885m in length, the north-eastern boundary measures 22.15m in length and the southern side boundary measures 32.495m in length. 4. It is currently occupied by a 4-storey building, pedestrian walkway and entrance to Wolseley Road, swimming pool, boatshed and boat ramp. The northern setback is 3.89m and the southern is nil. The DCP control is 6m. 5. The site is zoned R3 Medium Density Residential under the LEP and located in the Point Piper Precinct under the DCP. 6. This Precinct is characterised by large multi-storey residential dwellings and multi-storey residential flat buildings in varying architectural styles. The proposed works for the conversion of the existing dwelling house to a residential flat building will generally maintain a built form which is compatible with and sympathetic to adjoining and nearby developments in this foreshore locality. Multi-storey residential flat buildings adjoin the site to the north and northeast (52-54 Wolseley Road and 48 Wolseley Road) and multi-storey dwelling houses adjoin the site to the east and south (46 and 42A Wolseley Road). Clause 4.6 written request 1. Before I can consider the merits of this application, I must determine as a matter of jurisdiction the applicant's revised cl 4.6 written request prepared by Mr Moody seeking a variation of the height of buildings development standard in cl 4.3 of the LEP. The written request identifies at the outset the case law in respect to the interpretation of the clause and the objectives in cl 4.6(1). 2. The written request then sets out the terms of cl 4.3: 4.3 Height of buildings (1) The objectives of this clause are as follows— (a) to establish building heights that are consistent with the desired future character of the neighbourhood, (b) to establish a transition in scale between zones to protect local amenity, (c) to minimise the loss of solar access to existing buildings and open space, (d) to minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion, (e) to protect the amenity of the public domain by providing public views of the harbour and surrounding areas. (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map. (2A) Despite subclause (2) and clause 4.3A, the maximum height of a dwelling house, dual occupancy or semi-detached dwelling on land in Zone R3 Medium Density Residential is 9.5 metres. (2B) Despite subclause (2) and clause 4.3A, the maximum height of a building on a battle-axe lot on land in Zone R3 Medium Density Residential is 9.5 metres. 1. "Building height" and "ground level (existing)" are relevantly defined as: building height (or height of building) means— (a) in relation to the height of a building in metres—the vertical distance from ground level (existing) to the highest point of the building … ground level (existing) means the existing level of a site at any point. 1. Next, the written request identifies the relevant height of building standard applicable to the site to be 9.5m under the LEP pursuant to cl 4.3(2B), because it is a battle-axe lot within an R3 zone. 2. Based on the calculation of the applicant's architect, the maximum height of the proposed development is at the western end of the development at 13.180m. A numerical breach of 38.7% comes about because of the extrapolation of the phrase "ground level existing" in the circumstances of this steeply sloping site. 3. The particular elements of the building that are in breach of the height control are then identified at p 6 by reference to the Maximum Building Height Analysis Plan. This is the same Plan annexed to the joint report reproduced in my introduction at [3]. 4. The written request states that most of the proposed top level, comprising Unit 3, has a maximum building height of 6.16m which is below the 9.5m maximum height limit under the standard. At the western end of the proposed top level, the building has a maximum height of 13.18m which is due primarily to the fact that the western portion of the existing building is on a steep ledge facing Sydney Harbour. At the south-western end of the proposed top level, it has a maximum building height of 12.18m due, again, to the fact that the western portion of the existing building is on a steep ledge facing Sydney Harbour. 5. The Height Blanket Diagram at p 7 of the written request is reproduced for reference below. 1. It is submitted that the Height Blanket Diagram evidences that the great majority of the proposed top level is significantly below the 9.5m control. The darker pink area demonstrates that the western and south-western portions of the proposed top level are in breach of the maximum height standard along with elements of the existing development. 2. The written request states that the proposed works to this western façade significantly improve the aesthetics of the existing western façade. In that context, it is submitted that the variation of the standard is reasonable when considered in the context of its relationship with the overall topography of the site; that the breach is restricted to certain elements arising from the topography, and that the exceedances do not contribute to the overall bulk, scale and height of the proposed development. 3. In determining the height of the development, the written request explains that the extrapolation method was used and required the measurement of the levels from the closet immediate proximity where the existing ground level can be found. 4. That said, the applicant makes the observation that the facts of this case are analogous to those in Bettar v Council of the City of Sydney [2014] NSWLEC 1070 in that the determination of the location of the existing ground level at the closest immediate proximity within the site rather than on the adjoining property results in a greater numerical breach. It is submitted that if one were to view the site from adjoining properties, the proposed external wall heights measured from the existing ground levels of adjoining properties are below the 9.5m maximum height limit. When viewed from the backyard of 48 Wolseley Road, the roof of the proposed top-level addition is actually below the level of the rear yard of 48 Wolseley Road. Similarly, when viewed from the adjoining property to the southeast fronting Wolseley Road and the property immediately to the south, they are at a higher level than the subject site to the effect that the proposed development will only be seen as a maximum 2-storey development from these adjoining properties (Diagram of adjoining properties, p 9). 5. Against that background, the written request emphasises that the degree of the breach is not the ultimate determining factor in deciding whether to support a request for variation of the standard, even more so when the objectives of the standard are achieved. 6. The written request then addresses each of the objectives of the standard and explains how each is satisfied to support the applicant's ultimate submission that it is unreasonable and unnecessary to require strict compliance in this case. 7. Objective (a) seeks to establish building heights that are consistent with the desired future character of the neighbourhood. 8. To assist in understanding the desired future character of the relevant neighbourhood, the written request refers to the Council's DCP. This DCP describes the desired future character for the western side of the peninsular, where the site is located, within the predominantly zoned R3 zoning, as encouraging development for residential flat buildings and multi dwelling housing. On that basis, the written request states that the proposed conversion of the existing dwelling is consistent with the relevant desired future character. 9. As there is no change to the existing streetscape character, the proposed alterations cannot be seen from the streetscape. On that basis, the written request contends that it can be accepted that the development respects and enhances the streetscape character and key elements of the Precinct – thereby achieving Objective O1 of the DCP. 10. The written request records that the development incorporates a positive palette of materials and colours in a well-designed contemporary building. Unit 3 is modulated and is said to be a significant improvement in the visual aesthetics of the proposed building compared to the existing, notwithstanding the breach – thereby satisfying Objective O2 of the DCP. 11. The front setback of the building after development will be unchanged therefore Objective O3 of the DCP is said to be satisfied, and as there is no change to the existing topography of the existing ground level (no cut and fill required), the development is said to be in accordance with Objective O4 of the DCP. 12. The written request also states that there will be no loss of any iconic and harbour views from the street, therefore Objective O5 is achieved. Additionally, there is no loss of "significant views and vistas" as identified in the Point Piper Precinct under the DCP. 13. Objective O6 of the DCP dealing with desired future character seeks to ensure "…that development facilitates view sharing to adjoining and adjacent properties". The applicant's written request refers to a consideration of view sharing under the DCP and the planning principle in Tenacity (Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140) and submits on that basis the variation is justified. 14. It is also submitted that there is no impact on any "historic grand estates", and no removal of Inter War flat buildings or any impact on the stone and brick retaining walls on the site, thereby Objectives O7 and O8 of the DCP are said to be met. 15. The site is not adjacent to a change in zone therefore the second objective of the standard is not relevant (objective (b)). Objective (c) of the standard seeks to minimise the loss of solar access to the existing building and open space and the shadow diagrams referred to in the request demonstrate no unreasonable impact in that regard. 16. With respect to the objective (d) "To minimise the impacts of new development on adjoining or nearby properties from disruption of views, loss of privacy, overshadowing or visual intrusion", it is submitted that there are no unreasonable impacts. In terms of the views, the written request states that the only property that requires a detailed assessment is Unit 1 of No 48 Wolseley Road and the adjoining open space. In that regard, the written request concludes: 1. The great majority of wide panorama of views currently enjoyed from Unit 1 will be maintained; 2. The great majority of water views has been maintained; 3. All the existing land-water interface views will be retained; 4. All existing vistas of the heritage items on the opposite side of Double Bay will be retained; 5. All views of the CBD skyline will be retained; and 6. All views of the Sydney Opera House and partial views of the Harbour Bridge will be retained. 1. Therefore, in terms of views to the adjoining Unit 1, the view loss is said to be assessed as "minor", and when considered with the permanent removal of the existing tree, it is submitted that Unit 1 will enjoy a "significant improvement in views". 2. As there are no windows on any of the elevations overlooking the adjoining properties to the south, southeast and east, maintaining existing privacy, it is submitted is not an issue. And, the privacy screen along the northern edge of the raised spa and the obscure glazing to the bath, ensuite and shower windows as proposed are said to ensure the privacy of the adjoining dwelling to the north. Accepting that the adjoining properties to the east, southeast and south sit higher, the written request submits that there will be no visual intrusion as level 3 from that angle will be viewed as a 2-storey structure. 3. In respect to the objective (e) "To protect the amenity of the public domain by providing public views of the harbour and surrounding areas", the written request identifies that the development will not adversely impact any public views including "significant views and vistas" identified under the DCP. The written request states that the development will not be contrary to the planning principle established in Rose Bay Marina Pty Ltd v Woollahra Municipal Council [2013] NSWLEC 1046. The nearest public views are from Wolseley Road, however as the site sits significantly below Wolseley Road there is no loss of public views from Wolseley Road arising from the development. Furthermore, as the site is nestled below, behind and between other development, there are no public views of Sydney Harbour and surrounding area. 4. For all of the above reasons, the written request states that the development is consistent with the objectives of the standard. In that circumstance, it submits that it unreasonable and unnecessary to comply with the development standard. Thereby, invoking the first test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 as endorsed by the Court in Initial Action (Initial Action Pty Ltd v Woollahra Municipal Council (2018) 236 LGERA 256; [2018] NSWLEC 118). 5. Having considered the written request as required by cl 4.6(3)(a), I am satisfied that the request has demonstrated that compliance with the development standard is unreasonable and unnecessary in the circumstances of the case because I accept that the objectives of the standard are achieved notwithstanding the numerical breach for the reasons expressed in the request by Mr Moody. Are there sufficient environmental planning grounds to justify contravening the development standard under cl 4.6(3)(b)? 1. The applicant acknowledges in the written request that cl 4.6(3)(b) requires demonstration that there are sufficient environmental planning grounds to justify contravening the development standard. The Council submits that the written request has not satisfied this provision of cl 4.6. The reasoning of the Court in Initial Action provides assistance in relation to the consideration of sufficient environmental planning grounds. Preston CJ observed that in order for there to be 'sufficient' environmental planning grounds to justify a written request under cl 4.6, the focus must be "on the aspect or element of the development that contravenes the development standard" and the "environmental planning grounds advanced in the written request must justify contravening the development standard, not simply promote the benefits of carrying out the development as a whole" (at [24]); and there is "no basis in cl 4.6 … [to] establish a test that the non-compliant development should have a neutral or beneficial effect relative to a compliant development" (at [87]). 2. While not defined, the written request records that the environmental planning grounds must be environmental planning grounds by their nature and would refer to grounds that relate to the subject matter, scope and purpose of the Environmental Planning and Assessment Act 1979 (EPA Act) including its objects in s 1.3: Initial Action at [23]-[24]. Additionally, they must reference the aspect of the proposed development that contravenes the standard and why that contravention is justified on environmental planning grounds. Furthermore, having identified sufficient environmental planning grounds they must also be adequately addressed in the written request: Four2ive Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31]. 3. The applicant submits that the fact the development achieves the objectives of the standard evidences orderly and economic use of the land in accordance with s 1.3(c) of the EPA Act. This environmental planning ground is addressed comprehensively when detailing compliance with cl 4.6(3)(a) and is relied upon for the purposes of cl 4.6(3)(b). 4. The written request submits that the element in breach of the height standard within the proposed top level provides a positive articulation to the existing building which results in a significantly improved presentation of the existing building when viewed from Sydney Harbour consistent with the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP 2005). 5. The written request states that despite the breach of height, the development is comparable with the height, bulk and scale of adjoining existing development on the western hill side facing the Sydney Harbour (Written Request (WR) pp 17-18). 6. For reasons set out in (a), (b), (d) and (e) at p 18 of the written request, it is submitted that the proposed development (containing the element at the leading edge of the building which is in breach of the height standard) promotes good design in accordance with objective s 1.3(g) of the EPA Act. 7. The written request identifies in the Height Blanket Diagram at p 7 read with the Maximum Building Height Analysis Plan at p 6 the steep topography of the site which generates the breach of the height at the leading edge of the building. This environmental planning ground can be relied upon under cl 4.6(3)(b). 8. The proposed massing of the building across the site is the result of an analysis of the site and surrounding context and the desire to deliver a positive design outcome with architectural merit within the context of an area that contains multi-level dwellings and residential flat buildings. Strict compliance with the development standard would result in an inflexible application of the control in circumstances where the slope of the site requires some adjustment in height at the steepest part of the site. The extent of the breach arises from the point at which ground level is taken. This site constraint which drives the breach is an element or aspect of the development that contravenes the standard and yet another reason why the contravention is justified on environmental planning grounds under this limb of cl 4.6(3)(b). 9. I am satisfied that the written request has demonstrated that there are sufficient environmental planning grounds to justify the contravening the development standard as required by cl 4.6(3)(b) and I am also satisfied that they have been adequately addressed. In forming this opinion I rely on the written request in particular the Maximum Building Height Analysis plan and Height Blanket Diagram (reproduced at [3] (and p 6 of the WR) and at [28] (and p 7 of the WR) respectively) which demonstrate the breach of the standard is driven by the steep slope, the overall topography of the site and that the element of breach sits in scale and height with is neighbours despite the exceedance of height control. I accept, as stated that the exceedance does not contribute to the overall bulk scale and height of the development. These grounds alone are sufficient, and I have not taken into account any other purported grounds as submitted. 10. As I have determined now that the applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3), it follows that cl 4.6(4)(a)(i) is addressed. 11. I am also satisfied that the proposed development is in the public interest because it is consistent with the objectives of the particular standard for the reasons identified earlier; secondly, because I am of the opinion that the proposed development is also consistent with the objectives of the R3 zone in which the development is proposed, for the reasons that follow. 12. The objectives of the Medium Density Residential R3 zone under the LEP include: • 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 ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. 1. The written request addresses each of the zone objectives. It states that the conversion of the existing dwelling into a residential flat building is a positive outcome because it will provide additional medium density housing stock in a locality zoned for such purposes (WR p 24). Furthermore, it offers a height and scale that achieves the desired future character of the neighbourhood notwithstanding the breach. 2. I accept that the written request has identified sufficient reason as to why the relevant zone objectives are achieved by this development. Noting, that Mr McIntyre expresses the same view in his report to the Woollahra Local Planning Panel. He describes the development as being of a height and scale that achieves the desired future character of the neighbourhood (Exhibit G folio 153). 3. Accordingly, I am satisfied that the proposed development is in the public interest because it is consistent with the objectives of the R3 Medium Density zone in which the development is proposed to be carried out and the development standard in cl 4.3 in accord with cl 4.6(4)(a)(ii) for the reasons earlier identified. 4. Accepting that cl 64 of the Environmental Planning and Assessment Regulation 2000 provides that the Council (now the Court) may assume the Director General (Secretary's) concurrence for exception to development standards that satisfy the terms of the clause and the development does not raise any matter of State or regional environmental significance, cl 4.6(5) or (6) do not create an impediment to me approving the variation of the standard in this case. 5. The cl 4.6 written request is approved. View impacts arising from the development 1. The planners' joint report addresses the contentions raised by the Council in the Further Statement of Facts and Contentions. These experts are agreed that the sole impact requiring a detailed assessment is the view loss from the adjoining unit at 1/48 Wolseley Road. They raise no issue in respect of the public domain including Wolseley Road and Sydney Harbour. In fact, in terms of Sydney Harbour, they agreed that the proposed development will result in a range of positive outcomes when compared to the existing building. 2. The planners are also content that the development will not adversely impact the existing streetscape and that the converted building itself will fit into the desired future character of the Point Piper Precinct. In that regard, they note that the desired future character seeks to encourage residential flat buildings and multi dwelling houses on the western side of the peninsula. The planners are also agreed that the development achieves the objectives of the R3 zone and to be consistent with objective (a) of the development standard in cl 4.3 of the LEP – leaving aside their disagreement as to the reasonableness of the view loss for the adjoining Unit 1/48 Wolseley Road. 3. In dealing with the objectives of the DCP, the planners gave evidence that: * In relation to Objective O1 of Part B1.1.3 of the DCP, the proposed development achieves consistency with the desired future character of the neighbourhood, leaving aside their disagreement as to the reasonableness of the view loss for Unit 1. * In relation to Objective O5 of Part B1.1.3 of the DCP, the proposed development will ensure preservation of significant view corridors and ridgelines. On this point, the planners agreed the proposed development will not impact on any "significant views and vistas" for the Point Piper Precinct which are identified on Map 6, Section B1.6 of the DCP. * In relation to Objective O1 of Part B1.6.2 of the DCP, the proposed development will not impact on the streetscape character and key elements of the Point Piper Precinct. * In relation to Objective O5 of Part B1.6.2 of the DCP, the proposed development will not impact on iconic and harbour views from the street, views from other public spaces in the Precinct, and views between buildings and over or through front fences. * In relation to Objective O1 of Part B3.5.1 of the DCP, the proposed development will not impact on the streetscape and the desired future character of the area. * In relation to Objective O2 of Part B3.5.1 of the DCP, the proposed development is of a positive visual quality when viewed from Sydney Harbour. The proposed development will also not adversely impact on the streetscape. 1. In respect of cl 26 of SREP 2005, the planners are agreed that the proposed development will have a positive impact when viewed from the Sydney Harbour. 2. In relation to privacy matters, the planning experts are agreed that visual privacy is satisfactory. 3. Finally, they are agreed that the amended plans and the Varga Traffic Report (Exhibit J) has resolved the Council's contentions in relation vehicular access subject to conditions. 4. The impact of the height of the development on the views from Unit 1/48 Wolseley Road was specifically addressed in the planners' joint report (Exhibit 3). At par 30, they agreed that the following elements of the existing views from Unit 1 will be retained if in the event of an approval of this development: 1. the great majority of water views (noting some disagreement as to whether these water views were distant); 2. the Sydney CBD skyline, including Sydney Tower; 3. the ferry channel (apart from that part of the ferry channel blocked by the existing tree). With Mr McIntyre agreeing in oral evidence that the removal of the tree opens up those views (Tcpt, 5 August 2021, p 38(10-30)); 4. the land and water interface on the opposing side of Double Bay – noting that the land and water interface on the eastern side of Double Bay and in front of the development site is not perceptible from Unit 1 presently (Tcpt, 5 August 2021, p 40(5-36)); 5. the heritage items on the opposing side of Double Bay; 6. the Sydney Opera House; and 7. the part views of the southern end of the Sydney Harbour Bridge. 1. I note that Mr McIntyre in his oral evidence emphasised that the loss of some of the foreground water views was of equal importance to the views of the elements retained because these views are constantly changing. The removal of the tree is only to facilitate the new built element which is non-compliant with the height and side setbacks. Mr McIntyre has assessed the view impact as a "moderate impact on Unit 1 as a result of the cumulative non-compliance with the LEP and DCP in respect of setback". He believes a more skilful design could provide the applicant with a similar development potential whilst reducing this impact on the views of the neighbour at Unit 1. Mr Moody disagrees with Mr McIntyre's assessment of view loss to Unit 1. Applying the view sharing principle in Tenacity, which is adopted by the DCP, he considers, the view loss to Unit 1, as "minor". A view loss which he believes will be improved by the removal of the tree. The height diagrams at Annexures C and D of the joint report, he contends, clearly demonstrate that approximately 75% of the proposed development has a height of 6.16m, significantly below the 9.5m maximum height standard. 2. Accepting that the existing views retained to Unit 1 (listed at [44] above) are both panoramic and significant, Mr Moody considers the design to be both skilful and the development to achieve the objectives of view sharing encouraged by the DCP. Consideration - findings 1. In respect to view loss, it is relevant that the proposed Unit 3 development sits within an existing building footprint on ground that is steep and lower than that at No 48 Wolseley Road. In that context, the evidence is that the Unit 3 component, is in the main, compliant with the height standard. More than 3m lower than what technically could be allowed. The breaches are discrete elements including the leading edge of the building facing the harbour and clearly driven by the steep topography of the land. The surveyed height poles demonstrate where the Unit 3 built form sits in the view of the owner of Unit 1. The offending elements were easily understood, and I was able to guage with the assistance of the planners onsite a very clear understanding of the impact of that level on the existing view from within the unit and its deck and the common area at the rear. As already stated, the Council describes the view impact from Unit 1 as "moderate" and the applicant says its "minor". It does not agitate any particular concern of its own about the view impact for other units or the rear common area albeit it voices those concerns expressed by the objectors including Ms Nobel and the owner of Unit 1/48 Wolseley Road. 2. The owner of Unit 1 and his planner Mr Collins believe the view impact for 48 Wolseley Road to be significant: "…seriously impact on existing views of water and land and water interface from apartment 1, 48 Wolseley Road and from the strata common property lawns and garden areas. Most foreshore water views including moored and travelling vessels will be obliterated" (Exhibit 2, p 33). However, the objective assessment of Mr McIntyre is that the view loss is moderate. He accepted in answer to a question from the applicant's Senior Counsel, Mr Galasso, that if Unit 3 was built to its maximum height, throughout the whole width of the site the development could be 3.3m higher and in that event the impact on Unit 1 would be drastically worse (Tcpt, 5 August 2021, p 43(25-40)). Mr Mcintyre also agreed that relative to the height of building control, the proposal before the Court is a better result for view sharing than a building which goes to the height that is permissible on the site (Tcpt, 5 August 2021, p 48(10-26)). And, if the development were pulled back from the northern boundary – 2.11m to be more compliant with the DCP setback control – there would be a termination of the view as the owner of Unit 1 looks west, that is of the land-water interface, of the city skyline, "of all of that" (Tcpt, 5 August 2021, p 48(40-45)). 1. Accepting that views need to be shared, Senior Commissioner Roseth's view sharing principle in Tenacity at [25]-[29] sets out how this can be reasonably achieved. The Council's DCP also adopts this methodology for view sharing assessment which it seems to encourage. The notion of view sharing is said to arise when a property enjoys existing views and proposed development would share that view by taking some of it away for its own enjoyment. 2. The planning principles invites a four-step analysis of the existing views and the proposed development to decide whether or not view sharing is reasonable. The first step is to assess the views affected. The agreed planning evidence and my observations confirm that the iconic and main water views and those to Double Bay are unaffected by the development. The wireframe modelled photos (Exhibit K), and the height poles provide a give a clear understanding of how the development will impact Unit 1 and the common area. The non-compliant component is, in my assessment, minor – located at the leading edge of the development and takes away little of the water view. 3. The compliant development will remove some existing water views which are partly presently blocked by the tree – albeit the tree removal will open a new water view even with the development in place. The view removed can be seen from some angles from the living room and looking back from the kitchen to a lesser extent. That said, when I consider the extent of the impact for the whole of the property, not just for the view that is affected, the area taken away is not unreasonable given the R3 zoning and surrounding built form. 4. Clearly, the applicant cannot expect to build to the maximum height: to do so would have a devastating impact. However, that is not the application before me. The proposal is measured and does not impact any iconic views but has been designed to the slope of the land skilfully and exceeds the height only at the steepest gradients. The view impact is generated in the main from a compliant built form and the non-compliant section removes only a small area of water view, boat movement, moorings - based on the evidence that I accept. After a consideration of all of the evidence, including the lay evidence, I find the view sharing result to be reasonable from Unit 1 and the other units in the block and the communal garden. I find that the view impact has been minimised in accord with the objective of the height standard. In those circumstances, the impact is, in my assessment, and consistent with Mr Moody's expert evidence minor. 5. That said, I note that the existing tree presently stands in the way of the owner of Unit 1's view to the water. While he does not accept that the removal of the tree "enhances his view" as Mr Moody suggests, it is fair to say that its permanent removal avoids any future impact and he will see new water views despite the development in this area. This is a fact. It is also a fact that the height poles in situ, and the photomontages demonstrate that the development will be compatible with the height, bulk and scale of adjoining existing buildings and sit comfortably on the western hillside facing the Sydney Harbour. It is a conservative building bulk compared to a number of adjoining existing buildings on the western hillside as Mr McIntyre conceded. The significant portion of the building is more than compliant with the standard as indicated in the Height Blanket Diagram. The shadow diagrams do not indicate any unacceptable overshadowing of the adjoining properties and open spaces. The overshadowing to the building to the south is of a minor level, and is acceptable. Conclusion 1. Except for the one issue in the appeal, about view loss, the proposed development is not only compliant, but in some instances significantly compliant with the primary controls in the LEP and certain controls in the DCP. As far as jurisdictional matters are concerned at p 147 of the bundle, the Council reports that the development is acceptable with regard to State Environmental Planning Policy No 55—Remediation of Land and I accept that assessment. It is noted that State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development is not engaged because of the number of units. The applicant has filed an updated BASIX certificate and that issue is also appropriately dealt with. The State Environmental Planning Policy (Coastal Management) 2018 raises no issue nor does the SREP 2005 – cll 16, 25, and 26 which the evidence has satisfactorily addressed – assisted by the removal of the pedestrian bridge from the proposal which was assessed to have obscured view corridors of the city. This is no longer an issue. 2. The development has a compliant land size. The floor space ratio (FSR) control is 1:1 and the proposal is 0.74:1 and it is submitted the development's FSR excessively complies being 26% below the control. The development is below highwater mark: cl 5.7, and the Heritage officer of the Council has signed off on the development as the site is not in a heritage conservation area. 3. The analysis in respect of acid sulphate soils indicates that it is acceptable also in that regard. In relation to earthworks, cl 6.2, it is acceptable based on the planners' evidence in the joint report. 4. With respect to limited development on the foreshore (cl 6.4), the evidence is that the proposal is consistent with cl 6.4(3) (Bundle p 166). I have earlier dealt with the DCP provisions in some detail when dealing with the cl 4.6 written request; and together with the comments as agreed in the planners' joint report and my observations of the site, I am satisfied that the proposed development satisfactorily addresses the relevant provisions of the DCP. I have explained why I think the side setbacks achieve an acceptable planning outcome and an improved view sharing opportunity in this case. As I understand, the southern boundary will now be set back 1.65m not 6m as the control provides but this preserves more view for the reasons already outlined based on Tenacity as called up by the Council's DCP Chapter B3.5.3. 5. Having considered the height poles plan (Exhibit N), which I accept is accurate, being based on the survey (Exhibit O), and the wireframe photos (Exhibit P) confirms what I observed in Exhibit E (annexed to the planners' joint report). Based on my observations made at the site view, I am also satisfied that the views outlined in par 30 of the joint report will be maintained and therefore the proposed development achieves appropriate view sharing. Conditions 1. The Council has proposed conditions in draft which the applicant generally accepts. The tracked changes version of that document filed with the Court has several comments which need to be amended in light of my decision to approve the DA. Also, where the condition is inconsistent with the relevant plans, it also needs to be amended, for example, condition C1 (c) and (e) about the privacy screen. 2. For the reasons outlined, I propose to grant development consent to the development application but will not do so until conditions consistent with my reasons are provided to me for consideration. 3. Accordingly, the Court directs: 1. The parties to confer and settle the conditions in accordance with my reasons for judgment and to provide a copy to the Court within seven (7) days. 2. In the event of disagreement, the parties are to relist the matter before me after 4.15pm and provide a list of the conditions at issue for resolution at that time. 3. Upon receipt of the conditions of consent, I will hand down my final orders. ……………………….. S Dixon Senior Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2021