Land and Environment Court of New South Wales CITATION : Bishop Hitchcock & Irwin Architects v Shoalhaven City Council [2004] NSWLEC 494 APPLICANT Bishop Hitchcock & Irwin Architects PARTIES : RESPONDENT Shoalhaven City Council FILE NUMBER(S) : 11383 of 2003 CORAM: Moore C Development Application :- Impact on views KEY ISSUES: Privacy Discharge of stormwater . LEGISLATION CITED: State Environmental Planning Policy 71 CASES CITED: Tenacity Consulting v Warringah [2004] NSWLEC 140 DATES OF HEARING: 1, 2, 3 and 21 June 2004 DATE OF JUDGMENT: 09/09/2004 APPLICANT Mr M Fraser, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr C Campbell, solicitor Morton & Harris JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Moore C 9 September 2004 03/11383 Bishop Hitchcock & Irwin Architects v Shoalhaven City Council JUDGMENT 1 COMMISSIONER: This an appeal pursuant to s 97 of the Environmental Planning and Assessment Act 1979 against the refusal by Shoalhaven City Council (the council) of Development Application 03/2635 to erect three two-storey townhouses in replacement of an old-style fibro beach house and garage on a block of land at 6 Holden Street, Vincentia (the site) being Lot 1 DP 794828. 2 The site is on the eastern side of Holden Street and is the third site to the south away from the foreshore reserve fronting Jervis Bay. One further residence, 8 Holden Street, lies to the south of the site with the southern boundary of this allotment running along the main east-west roadway linking Vincentia and the next settlement to the east. 3 Prior to the hearing of the appeal, there had been extensive discussions between representatives of the applicant and the council. As a consequence, a number of modifications had been made to the proposal to attempt to address the council's concerns. 4 Although the council had filed a formal Statement of Issues in the proceedings, only three potentially determinative matters remained to be considered. These were: o the impact of the proposal on the views from 8 Holden Street; o the impact on privacy by overlooking of the private opens space of 4 Holden Street; and o whether or not the proposed design was acceptable, generally, in the streetscape of Holden Street and as the first multi unit redevelopment in the precinct. 5 A number of other minor, non-determinative matters were also dealt with during the proceedings. 6 The existing dwellings at 2 and 4 Holden Street to the north of the site and at 8 Holden Street to the south of the site are freestanding residences with that at 8 Holden Street being a two-storey one. 7 These dwellings and the dwelling which had previously existed on the site were erected in an era when all four allotments had been zoned for single dwellings. 8 However, at some time in the past, the council had considered the long-term development strategy for the locality and had determined that the zoning should be changed to permit multiple unit dwellings on a single allotment subject to a range of criteria including a building height limit with which the present proposal complies. 9 I visited the site on two occasions in company with representatives of the parties and with the local resident objectors. 10 During the course of the first inspection, I had the opportunity to hear the evidence of the residents of 4 Holden Street and 8 Holden Street as to the impact of the proposal on their properties. During the course of this view, I also heard extensive informal evidence of behalf of the parties through their expert witnesses. 11 During the course of the two views, height poles were erected at various points on the site to represent elements of which were concern to the residents of either 4 or 8 Holden Street and each of these height pole erections were viewed from the relevantly affected property. Privacy for 4 Holden Street 12 The two areas potentially impacting the private open space of 4 Holden Street are the upper and lower level northern balconies of the proposal. 13 These comprised a major balcony on the upper level which would have had a clear glazed balustrade set back ~3.3 m, at the closest of them, from the boundary with 4 Holden Street and was up to ~4.4 m above ground level. 14 Below, each of the master bedrooms had a balcony accessed from it with the floor level of that balcony being up to ~ 1.4 m above ground. These bedroom balconies were proposed to be ~ 2.2 m deep. 15 The heights above the ground are as a result of the proposal having basement car parking which is not entirely below ground level. As a consequence of the gentle fall of the site from the south to north, the northern face of the building, at ground floor floor level, is ~1.5 metres above ground at its highest. 16 Having reached the broad conclusion, during the formal hearing at Kiama Court House, that the proposal was capable of consent subject to a range of modest modifications, with the concurrence of the legal representatives of the parties, I indicated the nature of the changes that might result in a satisfactory proposal. 17 With respect to privacy issues for 4 Holden Street, I concluded that these were capable of rectification subject to a number of changes to the proposal. These changes comprised the obscure glazing to the proposed balustrades coupled with an increase of the balustrade heights to 1.2 m to the upper level decks and the reduction in the width of the ground level balconies so that these lower balconies were, in effect, Juliette balconies and were not capable of being used for significant recreational purposes. A 500 mm element of lattice is also to be added to the top of the fence between the site and 4 Holden Street. 18 The applicant agreed to resolve a potential internal privacy issue between the balconies of Units 2 and 3, at the upper level, by the erection of an obscure glazed privacy screen to one or other of the balcony edges between these units. Impact on the views of 8 Holden Street 19 The residents of 8 Holden Street enjoy expansive views to the north across Jervis Bay. They enjoy these views from the living room of the property, which is on the upper level in the north western corner; from the dining-room (immediately adjacent to be living room to its east) and from their principally used private open space – the upper level rear deck which opens from the kitchen and which looks directly to the north across the site and the rear single storey elements of 2 and 4 Holden Street. 20 If the originally proposed development were to be constructed, there would have been adverse impacts on the views available from the living and dining rooms of this residence. However there would have been, in addition, much more significantly adverse impacts on the views available from the private open space on the rear deck. 21 The council's development control plan has, as the relevant objective, to encourage the sharing of views whilst not restricting the reasonable development potential of a site. 22 The relevant performance criterion states all property owners should be able to develop their property within established planning guidelines, however, existing views should not be substantially affected where it is possible to design for the sharing of views. 23 The principles to be considered when there is a general statement concerning view sharing, such as in this case, were set out by Roseth SC in Tenacity Consulting v Warringah [2004] NSWLEC 140. The Senior Commissioner said: 24. Clause 61 of the LEP states that development is to allow for the reasonable sharing of views. It does not state what is view sharing or when view sharing is reasonable. 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. 24 Adopting and applying these principles to the present case, I consider that the relevant test arises from the fourth of the Senior Commissioner's principles namely, whether a more skilful design could provide the applicant with the same development potential and amenity whilst reducing the impact on the views of the neighbouring property at 8 Holden Street. 25 In this regard, I was assisted not only by a detailed submission from the residents of 8 Holden Street but also by the evidence of Mr G Vickas, an architect commissioned by the council to assess the proposal. The erection of the height poles, on two occasions, was also of considerable assistance in dealing with this issue. 26 The impact on the views from 8 Holden Street was, in my assessment, capable of amelioration by a better design and more appropriate location of the development on the site. 27 However, I was satisfied that it was neither possible or appropriate to require the preservation of the entire view field available from 8 Holden Street -- particularly from the rear deck area. 28 As a consequence, I concluded that an addition to the setback from Holden Street coupled with the deletion of the south western corner on the upper level of unit 1 would provide amelioration for the view loss from the living room of 8 Holden Street and preserve a significant view corridor, toward the north-west, from the rear deck area. As the view corridor to the north-west from the rear deck would be, to a very large measure, over a foreshore reserve area as well as over Holden Street itself, I was satisfied that there was not likely to be any significant future impact on this view corridor from development on other sites. 29 These amendments to the design have been incorporated in the revised plans and, as a consequence, I am satisfied that sufficient appropriate steps have now been taken to minimise impacts on views of 8 Holden Street consistent with the provisions of the development control plan. Stormwater discharge 30 Part of the site is within 100 m of Jervis Bay and thus falls within the scope of State Environmental Planning Policy 71 (SEPP 71). For the purposes of the proceedings, the effect of this policy is that I am prevented from granting consent, by cl 16 of SEPP 71, if I am of the opinion that the development will, or is likely to, discharge untreated stormwater into the sea, a beach, or an estuary, a coastal lake, a coastal creek or other similar body of water, or onto a rock platform. 31 There was, from the material in evidence during the hearings, insufficient information to enable me to be satisfied that the development would not discharge untreated stormwater into Jervis Bay. 32 As a consequence, I indicated that I would not be able to approve the development, if all other issues were resolved, until I was so satisfied. I indicated that, in accordance with Weal v Bathurst City Council 111 LGERA 181, I was not prepared to leave the matter for determination at a future time, by the council, by imposition of a very general condition – whether deferred commencement or otherwise. 33 However, one matter relating to stormwater drainage was able to be dealt with immediately. Because of the basement car parking, the applicant proposes to have a stormwater collection system which pumped stormwater to the street for discharge from the site. 34 The council objected to having any stormwater discharge system which was not a gravity operated one. Such position, if accepted, would preclude basement car parking. I determined that, in light of the zoning and densities which would flow from it coupled with the height restriction that it would be unreasonable to preclude basement car parking. As a necessary consequence, therefore, some form of mechanical drainage would be necessary. 35 However, after consideration of the plans before me, I determined that an on-site detention sump would be an appropriate addition to the drainage regime necessary for the site. The applicant agreed to this proposal and to prepare and submit to council for its consideration (in the present proceedings) plans reflecting this and which would enable me to be satisfied in the context of cl 16 of SEPP 71. 36 The drainage plans necessary to deal with the stormwater drain issues raised by cl 16 of SEPP 71 have now been finalised to sufficient satisfaction of the council for an agreed condition referring to a specific concept plan to be inserted into the proposed conditions of consent. 37 I have considered these plans and the proposed condition. As a consequence of having done so, I conclude that the issues raised by cl 16 of SEPP 71 have been satisfied. The streetscape context of Holden Street 38 As noted earlier, the council has zoned the site and the other relevant allotments in the vicinity for denser, multi unit development than presently exists. 39 Excluding the present site and the buildings formerly erected on it, the streetscape of Holden Street on its eastern side is that of conventional brick dwellings. 40 The zoning clearly envisages that the streetscape will change. 41 In company with the representatives of the parties, I inspected the exteriors of several other contemporary developments in the general vicinity. Each of these developments was of a contemporary beach style design. Such style is generally consistent with that now envisaged for the site but is significantly different from that of the existing surrounding dwellings. 42 As I apprehend it, the principal objection raised by Mr S Dixon, a town planner employed by the council, was that the presentation to the Street of the original proposal contained insufficient variety in its presentation and was thus, in its context, comparatively monolithic. Although Mr T Weatherall, a town planner retained by the applicant, gave evidence on behalf of the applicant on this issue, I was persuaded that a greater variety in the presentation to Holden Street would represent a better design outcome for setting what may become, in the council's eyes, a precedent for the future character of the area as it redeveloped over time. 43 The original design, although having a degree of modulation, contained limited variety in its presentation Holden Street. 44 I was satisfied that a more appropriate design outcome involved the elimination of the south western corner of the upper level of unit 1. 45 After discussion between the parties, acceptable redesign of this area is being achieved by the creation of a deck at this point which has the effect of creating a setback at this level. As discussed earlier, it also provides an improvement to the north western view corridor from the rear deck of 8 Holden Street. 46 I accepted that this modification of the design, whilst not entirely satisfactory from the council's perspective, nonetheless is consistent with my understanding of the desired future character of the precinct as it redevelops. Other matters 47 Additional landscaping and drive location The original proposal involved a straight driveway from Holden Street to access the basement car parking. This presentation compounded the more general streetscape presentation difficulties of the original design. Altering the driveway design to provide a modest offset to the north also provided some, although limited, opportunity to soften the presentation of the driveway through additional landscaping (provided that landscaping did not impact on the views of the residents of 8 Holden Street). The applicant agreed to this amendment 48 Unit 1 south western corner deck Although accepting the modification to the south western corner of unit 1, the applicant sought to have balustrading incorporating glass panels and a solid hand rail to the resultant deck. However, the applicant accepted my decision that there be no hand rail and the supports to the glass panels be constructed of stainless-steel. A condition to this effect has been included in the draft conditions of consent. The conditions will also provide that nothing can be placed on this deck other than temporary tables and chairs in order to ensure that planter tubs and the like could not be put there to vitiate the ameliorative measures which this deck provides for the views from 8 Holden Street. 49 Offer to construct a new front deck at 8 Holden Street In the course of the proceedings, in order to seek a compromise with the residents of 8 Holden Street, the applicant offered to give an undertaking to the Court to construct a new deck, subject to council consent, at the front upper level of 8 Holden Street. Such construction and related approval processes are to be at no cost to the residents of 8 Holden Street. An undertaking to this effect, acceptable to the council, has been given to the Court. The applicant has also agreed to a condition that the building on-site is not to be occupied until this new deck at 8 Holden Street has been constructed and an occupation certificate issued for it. Such an outcome is not one which I could have imposed. Although this is a generous and significant ameliorative measure providing the residents of 8 Holden Street with much expanded opportunity to enjoy the views of Jervis Bay to the north, it is also not a matter which I took into account in determining that the present application could otherwise be made acceptable in its own right. 50 Access to Unit 3 As originally proposed, there was to be no at grade access to unit 3. Access to this unit would have been by stairs from the foot of the slope of the driveway. It was the council's position that this was an inappropriate design and the council's suggestion that this should be rectified was not vigorously contested by the applicant. I accepted that the original design response was inadequate and that at grade access to this unit was desirable. The design was, therefore, revised to provide a bridge over the doorway to the garage so that ground level access was available to this unit. 51 Roller shutter door to basement car parking area The original design proposed a roller shutter door to the basement carpark area. The council objected to this and proposed that the security of vehicles in the garage area should be provided by securing each of the individual parking spaces should the relevant owner desire such security. As it is reasonable to assume the possibility that one or more of these units will be used for holiday home purposes at some time, I accepted that it would be unreasonable, for crime prevention and security purposes, not to permit the garage to be secured by a roller shutter door. 52 Bollards and elimination of external parking The original proposal provided for a parking space in the front setback and for an external parking space at the foot of the driveway ramp. The council opposed these two parking spaces. That in the front setback was opposed on the basis that it detracted from the streetscape, particularly if it were to be used for semi permanent parking of an item such as a boat on a trailer. While the applicant did not consent to the deletion of this, it did not vigorously contest it. I was satisfied, in the context of the broader streetscape argument, that it was appropriate to delete this parking space. With respect to the proposed parking space at the foot of the ramp, I concluded that it was not necessary. It is more appropriate, for the relationship between the site and 8 Holden Street, that this area be utilised for landscaping. The plans have been amended to reflect this. I also indicated to the parties that, as part of the deletion of the parking space from the front setback, I considered it appropriate that some form of barrier by way of planter box or bollards be constructed to prevent such use on an informal basis. Conclusion and proposed orders 53 I am satisfied that the general design, as modified by the processes arising out of this appeal, will provide an acceptable design for the first multi unit redevelopment in this precinct. 54 Whilst what has resulted from this appeal might not be a perfect design for the site, it is, nonetheless, acceptable from the perspective of neighbour impacts and its general appropriateness in the Holden Street streetscape and, more widely, in the precinct. 55 The orders of the Court, noting the undertaking referred to in (49) above, therefore, will be: 1. The appeal is upheld; 2. Development Application 03/2635 for the construction of a residential flat building comprising three (3) dwellings at 6 Holden Street, Vincentia) being Lot 1 DP 794828 in accordance with the following plans: o 4502-CSD-A-01 Revision H o 4502-CSD-A-02 Revision J o 4502-CSD-A-03 Revision I o 4502-CSD-A-04 Revision F o 4502-CSD-A-05 Revision F o 4502-CSD-A-06 Revision I o 4502-CSD-A-07 Revision F o 4502-CSD-A-08 Revision G all by Bishop Hitchcock and Irwin with all revisions dated 22 June 2004; and o landscape plans LC01/02 and LC02/02 (both revision F) by Taylor Brammer dated 31 March 2004 with revisions dated 23 June 2004; and o drainage concept plan PN4584-D-101 Issue 5 of 25 June 2004 by MBK South Coast Pty Limited is determined by the granting of development consent subject to the conditions in Annexure A; and 3. The exhibits are returned. Tim Moore 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.