Land and Environment Court of New South Wales CITATION : Mr and Mrs Miltenyi v Kogarah Council [2006] NSWLEC 247 APPLICANT Mr and Mrs Miltenyi PARTIES : RESPONDENT Kogarah Council FILE NUMBER(S) : 11305 of 2005 CORAM: Hussey C KEY ISSUES: Development Application :- construction of a 3-storey dwelling and demolition of an existing dwelling, height and bulk of the building, visual amenity, view impacts, loss of privacy and access. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Kogarah Local Environmental Plan 1998. Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment. Better Home Design Guide - Residential Development Control Plan. DATES OF HEARING: 10/04/2006 and 11/04/2006 EX TEMPORE JUDGMENT DATE : 04/11/2006 APPLICANT Mr A. Galasso, barrister instructed by Mr M. Staunton of Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Ms C. Schofield, solicitor of Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 11 April 2006 11305 of 2005 Mr & Mrs G. Miltenyi v Kogarah Council JUDGMENT This decision was given extemporaneously. It has been revised and edited prior to publication. Background: 1 This appeal was lodged against council's refusal of development application for the demolition of an existing dwelling and subsequent construction of a 3-storey dwelling at No. 160 D Terry Road, Connells Point. 2 For the appeal the following issues were identified: o height and bulk of the building; o visual amenity; o view impacts; o loss of privacy; o access arrangements via an existing ROW. 3 The parties agreed to Mr G. Goodyer being the Court-appointed expert (CAE) for planning and he prepared detailed assessments (Ex. F,G). In addition to this Mr K. Nash consulting town planner provided an alternative planning assessment on behalf of council (Ex 6). 4 A number of objections were lodged by the neighbours and both the oral and written objections contained in Councils bundle have been considered. 5 The details of the proposal and planning framework are contained in the Statement of Basic Facts, on which I rely. The site. 6 The site is described as Lot 4, DP 258892 and it is a battleaxe allotment located on the southern side of the street, which has a frontage to Donnelly Park. This park adjoins the Georges River 7 It is of an irregular shape with a long access handle to Terry Street and it has a total area of 986.9 sq m. The area excluding the access handle is 512.5 sq m. Other properties have rights of way over this access hardle. 8 There is an existing 2-storey dwelling with detached garage on the site. The Proposal. 9 This proposal involves the demolition of the existing structures and construction of a 3-storey dwelling with attached garage. It also incorporates a lap pool adjacent to its eastern boundary. 10 The ground floor level contains the double garage, study, kitchen, sauna, living/dining rooms. The first floor contains 3-bedrooms and games room opening onto an elevated terrace. The second floor contains a master bedroom with en-suite and terrace. It extends for approximately half the width of the site. Planning Controls. Kogarah Local Environmental Plan 1998. The site is zoned Residential 2 (a)-Waterfront Scenic Protection Area and the proposal is permissible with council consent. Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment . Better Home Design Guide -- Residential Development Control Plan. 11 This DCP relevantly deals with: o Part 3 Locality Plan 6, Connells Point and Kyle Bay, o Part 5 Clause 5.1 -- Building Envelope, o Part 5 Clause 5.3 - Open Space, o Part 5 Clause 5.4 -- Landscaping and Bush land Protection, o Part 5 Clause 5.5 -- Privacy, safety and Security, o Part 5 Clause 5.7 -- Stormwater Design and Management, o Part 6 Ancillary Structures -- Outbuildings, Swimming Pools … Kogarah Development Control Plan No 3 - Foreshore Development Policy. Residential Design Guide 2005. The Evidence. 12 The principal contested issue in this matter concerns the height and bulk of the building. This arises because the proposed new dwelling presents a 3-storey southern elevation to the public domain/park and waterway, which the council submits is out of character with this predominantly 2-storey neighbourhood and it creates unreasonable view losses. 13 Following Mr Goodyers assessment of the initial proposal, he advised the parties that he could not support it for a number of reasons. Consequently the applicant amended the plans to respond to these concerns. This resulted in Mr Goodyers support for conditional consent of the amended proposal. 14 However Mr Nash still considers the proposal is of excessive height, which blocks significant views from the neighbouring property No 160 C. 15 As a starting point, I note that the controls in the DCP do not make reference to the usual FSR control, which indicates building bulk. Instead the controls rely on the building envelope, which depends on site coverage and maximum height as contained in the DCP, Part 5 dealing with elements of good design. 16 The building envelope is considered an important design feature "because it contributes to the streetscape and controls the size, footprint and bulk of a building as well as impact it will have on the environment and neighbouring properties". The associated objectives include: o To ensure a satisfactory level of privacy between adjoining dwellings; o To minimise the loss of neighbours views; o To reduce the appearance of the street of excessively bulky buildings; o To minimise the environmental impact and adverse effects on the surrounding area. 17 The performance measures allow a maximum height of up to 9m in the zone and the proposal complies with this. 18 The associated maximum site coverage control for a single dwelling is 40% for sites < 580 sq m and 35% for sites 580 – 750 sq m. Various boundary setbacks are specified. 19 The planners disagreed on the determination of the site coverage due to the battle-axed shape of the lot. Both agreed that the controls do not define whether the area of the access handle should be included in the calculation. The only definition of site area is contained with in Kogarah Local Environmental Plan 1998 which defines: site area, in relation to development, means the area of land to which an application for consent to carry out development relates, but does not include any part of the land on which the development is not permitted by or under this plan or any other environmental planning instrument. 20 Accordingly, Mr Goodyer considers it reasonable to adopt the entire site area. On this basis a site coverage of 21.7% is calculated, which comfortably complies, with the controls. 21 Against this Mr Nash considers the area of the access handle should be deleted, which results in 41.8% site coverage, which he considers is non compliant. 22 In my assessment, I am inclined to accept Mr Goodyers approach, based on Mr Galasso submissions that the entire area of the access handle is owned by the subject lot and it contains the constructed driveway/drainage infrastructure, which is considered as development. On this basis it is compliant. If however, I accept Mr Nash's approach, the degree of non-compliance with the DCP is 1.8%, which equates to approximately 9 sq m. In response the applicant has conceded that if strict compliance was required, then this area could be deleted from the ground floor garage to achieve numerical compliance. 23 Having considered this option, I consider the non-compliance is of a minor nature, which does not materially cause any adverse impacts. Even if this reduction was made, the envelope of the upper levels could remain with similar environmental impacts and view intrusions. 24 In considering this issue, I note that the performance criteria for site coverage in the RDCP is: site coverage must be such that there is adequate area on properties for infiltration of stormwater, deep tree planting, landscaping, footpath, driveway areas and areas for recreation. It should not be such that the site would be considered overdevelopment and thus detract from the neighbourhood. 25 From this determination, it is apparent that this control considers the bulk and utilisation of ground space for drainage and landscaping. On the evidence before the Court, there was no substantive evidence, which would lead to the rejection of the proposal because of unsatisfactory drainage or landscaping. The plans proposed on these specific elements were accepted. 26 In terms of the visual bulk of the proposal, Mr Nash said that it is unsatisfactory from the public domain in the Park and from the waterway because the neighbouring buildings are predominately 2-storey. 27 However, it appears to me that due allowance has to be given to the complying height status of this proposal. From my observations on the view there are two distinct fields of view from the park as follows: o Upper level Terry Road property, which contains a number of 3-storey dwellings. o Lower level accessway environment, which the topography presents a minimum of 2-storey height. 28 At this lower level, I consider that the (complying) height of the proposal 3 building level is acceptable within this context, because it does not extend for the full width of the roof, it is predominately against other building backdrop and it only blocks a minimal amount of vegetative back cover. 29 As the Court was not directed to any control which requires compliance with the existing 2-storey height because there is no storey control, I consider the height of the proposal is acceptable in this context, as allowed by the RDCP. 30 However, I then accept that this additional storey does create negative impacts on the neighbouring properties, particularly - 160 C, the neighbouring property owned by Mr and Mrs Bible who lodged detailed objections. 31 The principle objection is the view loss from the upper level bedroom and living room. Mr Nash supports their objection and considers an alternative design would reduce the impact. He relies substantially on Mr Goodyers initial assessment, which required a reduction in the extent of the upper level to open up George's River views. 32 In the first instance, I accept that the proposal eliminates the water views from the bedroom, but still maintains significant views from the living room/open deck areas. 33 Insofar as as the current proposal does not strictly comply with Mr Goodyers initial assessment, that results in a reduction of the view corridor of about 3%, which Mr Nash considers critical because it includes part of the north eastern water/shore inter face. But this view is maintained from other areas along the front patio of 160 C and its open deck. 34 Mr Goodyer now agrees that the proposal, not withstanding the 3% non-compliance represents a reasonable balance in view sharing. Both the planners referred to the planning principles in Tenacity, with different values being placed on the view loss. 35 Having had the opportunity to assess the views, I am satisfied to rely on the Court-appointed expert Mr Goodyers appraisal that the application of the principles in reasonable in this case. That application was based on the initial, bulkier building and he stated that: 3.4.2 The RDCP provides for consideration of views in Part 5.1, one of the objectives being "to minimise loss of neighbours' views". One of the Performance Criteria for Part 5.1 is "Buildings must be set back and designed to minimise loss of neighbour's views, where possible". 3.4.3 The RDCP does not provide further details on how an assessment of this objective and performance criteria should be made. I have adopted the planning principles outlined by Roseth SC in Tenacity Consulting Pty Ltd [2004] NSWLEC 140 as the basis of my assessment of the reasonableness of the proposal in terms of view loss and view sharing. 3.4.4 The assessment is a four step process. Step 1 is an assessment of the views to be affected. Water views are considered highly valued, whole views (e.g. a water view in which the interface between land and water is visible) are more valuable than one which is obscured. In my assessment the view currently available from various vantage points within the house, first floor balconies and terrace of No. 160C Terry Street is of a high value where there is a view available of the land and water interface. The view of the headland (beyond Donnelly Park and the sailing club) and of Donnelly Park itself (where available) is of a distinctive landform and local landmark. Other views that are available are generally of a low medium value, being a pleasant outlook of houses and gardens. 3.4.5 Step 2 in the assessment process is to consider what part of the property the views are obtained from. In this regard the owners of No. 160C Terry Street permitted me access through their house. Views are available to varying degrees from the first-floor south-facing rooms, balconies and terrace, being the main bedroom and appurtenant balcony, which leads to the terrace located at the western end of the house over the garage. The views are available from both within the house and from the balconies and terrace, but are more expansive from the outside vantage points. Views are available from both seated and standing points. Views are available from both seated and standing positions, but are more expansive from standing positions. 3.4.6 Step 3 in the assessment process is to consider the extent of the impact. The view is available from a variety of parts of the house; living areas are more valuable in terms of view impact than bedrooms and service areas. 3.4.7 I will start with the lounge room, which is the principle indoor living area (together with the kitchen/eating area). This room has framed views through the south facing sliding glass doors, which include views that are of high, medium and low-medium value. The view changes depending upon which part of the room you are in, as the closer you are to the sliding doors the more expansive the views. From within the lounge room the impact on views will be moderate to severe, in that the view over the building to the landform beyond the sailing club is a view of moderate value, but it will be totally obscured. 3.4.8 The balcony outside the lounge room is an area of high use being appurtenant to the principle living area, being outside and yet having some protection from the weather. The impact on the view from this position will be severe as views of the water will be greatly obscured, including the view across the water to the land/water interface on the southern side of the Georges River. The following photograph indicates the view from the balcony outside the lounge room. Please note that it was provided to me by the Respondent's solicitors. I have used the position of the height poles in the photographs, together with survey information showing the position of the proposed building in relation to the balcony on No. 160C Terry Street, to ascertain that the photograph was taken in front of the eastern end of the sliding doors providing access from the lounge room to the balcony: 3.4.9 The terrace at the western end of the dwelling house was said by Mrs Bible to be an area that is not currently used extensively. However, in my opinion it is an area of private open space with high utility, being of a good size for furniture and entertaining and appurtenant to the living area; it would be used more (in my opinion) if it had some weather protection but that doesn't mean that it is not a valuable outdoor area. The impact on the view here would be moderate, as the proposal would obscure the landform beyond the sailing club but the view of the water and across to the other side of Georges River would be retained. 3.4.10 The view loss from the main bedroom and the appurtenant balcony would be severe, in that the views of the water and across the Georges River would be almost totally obscured. However, the impact would be moderate in my opinion, considering the fact that it is from a bedroom and given the views that are retained from other parts of the house. 3.4.11 Step 4 in the assessment process is to consider the reasonableness of the proposal. In this regard, the first matter I consider is that the applicable controls permit a building to a maximum height of 9 m. I understand that the height poles that had been erected for the site inspection were at a height of 9 m, and the advice of the applicant at the site inspection is that the 600 mm parapets no longer form part of the proposal (although they are still shown on the plans filed with the Court). However, as noted by Roseth SC in Tenacity (paragraph 31), "this height limit is a maximum and does not entitle the applicant to a building envelope 8.5 m high [or, in the current case, 9 m] over the whole site". 3.4.12 Roseth SC said in Tenacity (paragraph 29) that the question to be posed is "whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of the neighbours". In my opinion the answer to this question is yes, and that a reduction in the size of the third floor of the building could be reasonably achieved through a more skilful design. In particular, the setback from the western boundary should be increased at third floor level to open up a greater amount of the view across the Georges River that is currently available from the balcony outside the lounge room of No. 160C Terry Street. 3.4.13 The following diagram indicates what, in my opinion, is the essential view line to skillfully design a building that provides for reasonable view sharing. It shows the position of a person on the balcony outside of the lounge room at No. 160C Terry Street (approximately 1.0 -1.5 m to the west of the position from which photograph 3 (above) was taken) .It projects a viewing line through one corner of the proposed top level of the dwelling house (which coincides with one of the height poles that was visible during the site inspection). Whereas the current proposal would result in the loss of most (if not all) of the water view from this viewing position, an amendment as indicated below would retain perhaps half of that water view, including the view of the land -water interface on the other side of the George River: 36 Consequently, I note the proposal was redesigned in response to these concerns, in order to open up water views to a greater extent, which Mr Goodyer now considers satisfactory. Conclusion 37 Having considered the evidence, the submissions, and undertaken a view, I am satisfied that this amended plan merits conditional consent. 38 As I have noted, the principal issue concerns the height and bulk of the proposal and its resulting impacts. In my assessment significant weight should be given to the fact that the height of the building comfortably complies with main height control of 9 m and it does not extend for the full width of the roof, thereby maintaining some views opportunities from neighbouring properties. 39 I am also satisfied that the building envelope control is reasonably satisfied and even if Mr Nashs interpretation of the site area is accepted, the 1.8% exceedence is marginal, with no material external impacts at ground level. 40 Insofar as I accept the compliance with the maximum standards does not guarantee a consent, nevertheless in the current circumstances, I consider that the degree of compliance with the building height envelope control generates a reasonable expectation for approval. 41 I am satisfied that this compliance results in satisfactory visual impacts from the public domain, considering the views observed at the site inspection and the absence of controls, which require maintenance of 2-storey heights to be consistent with neighbouring property, despite the 9 m height control. 42 I acknowledge there will be a negative impact on water views, particularly from 160C. But by application of the Tenacity Principles, I am satisfied there is a reasonable view sharing outcome, as stated by Mr Goodyer, based on the amendments undertaken in response to his initial assessment. Even though there is a loss of view from the bedroom, nevertheless other attractive water views are maintained from the living room and deck area, so the overall effect is to maintain a reasonable balance considering the complying nature of the proposal. 43 With respect to the submissions regarding the reasonableness of the proposal, I accept there could be many alterative designs, which are smaller and with less height. But it seems to me that the design is reasonable, for a family considering the lower level living area, 1st level 3 bedrooms/ game rooms for a family and separate main bedroom at the 3rd level. 44 I do not consider that there was any compelling evidence, which indicated that this complying development was so unreasonable or poorly designed to warrant rejection. 45 I am therefore satisfied to rely on the conclusions of Mr Goodyer that this amended proposal merits consent. He addressed the planning objectives and in doing so, I also note that when the original and bulkier proposal was assessed by council officer it was recommended for approval. 46 I have also considered the submissions regarding recently adopted Residential Design Guide 2005. But I do consider it to be the relevant control, because in any case there is a savings clause, so that the RDCP is the prevailing control. Accordingly I am satisfied the proposal demonstrates reasonable compliance with the RDCP. 47 The Court Orders are: 1. The appeal is upheld. 2. Development consent is granted to development application 691/04 for the demolition of an existing dwelling/garage and construction of a 3-storey dwelling at 160D Terry Street, Connells Point, subject to the conditions in Annexure A. 3. The exhibits may be returned except for Exhibits 6, 10, C, F, G, H, J, K. ___________________ R Hussey Commissioner of the Court Ljr/rjs 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.