Land and Environment Court of New South Wales CITATION : Benson & Partners Pty Limited v Woollahara Municipal Council [2009] NSWLEC 1435 APPLICANT Benson & Partners Pty Limited PARTIES : RESPONDENT Woollahara Municipal Council FILE NUMBER(S) : 10533 of 2009 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to existing residential unit - view loss Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Woollahra Residential Development Control Plan CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 Pafburn v North Sydney Council [2005] NSWLEC 444 DATES OF HEARING: 1 December 2009 EX TEMPORE JUDGMENT DATE : 2 December 2009 APPLICANT Ms S Hill, solicitor SOLICITORS Susan Hill & Associates Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 2 December 2009 10533 of 2009 Benson & Partners Pty Limited v Woollahara Municipal Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA 393/2001/1 by Woollahra Municipal Council (the council) that provides for alterations and additions to Unit 4, 18 Ian Street, Rose Bay (the site). The specific works are: the construction of a new study through the enclosure of the existing roof terrace to the north of the unit with access from the existing living area and an area of around 39.5 sq m; and the extension of the master bedroom by the enclosure of the existing western facing roof terrace with an additional area of around 11.7 sq m. 2 The new study is to replace an existing room in the unit that is currently used as a study, as the applicant proposes to use this area as an additional bedroom. The area of the new study is similar in size to the existing study, so the internal cabinet and fittings can be relocated with little modification. 3 The contentions relate to the new study breaching the council's requirements for height, FSR and setback and which result in view loss from adjoining properties particularly Unit 3, 24 Carlisle Street, and 26 Carlisle Street. The council raised no issue with the bedroom extension. The site 4 The site is a battleaxe block located on the eastern side of Ian Street. It has a site area of 850.7 sq m, if the access handle is excluded, or 910.7 sq m including the access handle. Access to the site is via the access handle, which serves as a Right of Way from Ian Street. The site slopes downwards from the north-eastern corner to the western front boundary, a fall of approximately 14.3 m. The site is currently occupied by a 4-storey residential flat building containing 4 units. Unit 4 has expansive views of Sydney Harbour and the city skyline. 5 The locality is predominantly residential in nature, but consisting of a range of residential development including 4-storey residential flat buildings and dwelling houses. View loss 6 The location and height of the proposed study was shown through the erection of height poles and an inspection of the properties at Unit 3, 24 Carlisle Street and 26 Carlisle Street was undertaken to assess the impact on views. The Court also had the benefit of expert reports from Mr Lindsay Fletcher, for the applicant, and Ms Eleanor Smith, for the council. They reached different conclusions on the impact on the views from the adjoining properties. A fundamental consideration in their different conclusions was the weight that should be given to the existing vegetation and planter boxes that are located on the terrace in the location of the proposed study. 7 Mr Fletcher took the view that it would be unreasonable to disregard the existing vegetation and planter boxes and that the proposed study will likely have a lesser effect on views than the existing vegetation. Ms Smith states that the existing vegetation and planter boxes should be given no weight as they are a temporary fixture and can be removed at any time. 8 The issue of view loss is addressed in a number of areas. Part 5.5 of the Woollahra Residential Development Control Plan (the DCP) addresses views. The relevant objective is O 5.5.2 that states: To encourage view sharing as a means of ensuring equitable access to views from dwellings 9 The relevant performance criteria is C 5.5.6 that states: Building forms enable a sharing of views with surrounding residences, particularly from the main habitable rooms of surrounding residences 10 Tenacity Consulting v Warringah Council [2004] NSWLEC 140 sets outs means of assessing view impacts and involves four tests. These are: 1. an assessment of the views to be affected; 2. the part of the property where views are achieved; 3. the extent of the impact; and 4. the reasonableness of the proposal that is causing the impact. 11 Pafburn v North Sydney Council [2005] NSWLEC 444 sets out considerations for assessing amenity impacts on neighbouring properties. The planning principle provides criteria for consideration. These are: 1. the change in impact may be as important as the magnitude of the impact; 2. there is a need to balance the magnitude of the impact with the reasonableness and necessity of the proposal; 3. the vulnerability of the receiving property; 4. whether a more skilful design can be used; and 5. impacts from a non-complying development are more difficult to justify than a complying development. 12 The vegetation and planter boxes in question, consist of a number of overlapping raised timber planter boxes with a dense landscaping screen to a height of around 3 m that extend the full width of the terrace. As I understand, the council has investigated the legality of the vegetation and planter boxes, and because of their temporary nature cannot force their removal. Also, the council cannot locate the approved landscaping plans for the building. 13 In considering the different views of Mr Fletcher and Ms Smith, I am satisfied that the approach of Ms Smith is the appropriate one. While there appears to be no legal basis for the removal of the vegetation and planter boxes, in the absence of the approved landscape plans, I agree that no weight should be placed on their existence. It would be an absurd planning outcome if some form of temporary structure were used to justify the erection of a permanent structure, particularly when the permanent structure creates unacceptable impacts on adjoining properties. In practical terms, the existing planter boxes and landscaping could be removed at any time, either by the current owner or a future owner, for a range of reasons. Once a permanent structure is erected, it is highly unlikely to be removed. 14 If the proposed development is considered in the light of the DCP, the planning principles in Tenacity and Pafburn, then I have little trouble in concluding that the new study is unacceptable for a number of reasons. First, the proposal is inconsistent with objectives 0 5.5.2 and performance criteria C 5.5.6 in the DCP. The proposed study will permanently remove about 50% of the view corridor to the harbour from Unit 3, 24 Carlisle Street. While the views over the building at 18 Ian Street will be unaffected, these views are of the Sydney skyline, but are distant, narrow views that have no land/water interface. In my view, the views through the view corridor , in the location of the proposed study, provide a greater depth of water and distant land views, and should be seen as valuable. In terms of view sharing, the applicant obtains additional panoramic views of the harbour and the Sydney skyline from the proposed study, while the views from Unit 23 are significantly reduced. I do not accept that this represents any form of view sharing. 15 Second, and even with the concession by Mr Fletcher that the overall height of the proposed extension could be reduced by some 300 mm with the consequent affect there would be no additional view loss when seated in Unit 3 because of the existing opaque balaustrading on the balcony, I still do not accept that the proposal provides reasonable view sharing. The impact of view loss will clearly still be obvious in the standing position on the balcony and inside the unit. These are relevant matters in Tenacity, particularly when the view loss will be experienced from the living and recreational areas of Unit 3, if only in a standing position. 16 Third, the potential impact on 26 Carlisle Street is also unacceptable. This property was inspected, however, it currently consists of an older style residential dwelling. A development application for it's redevelopment has been submitted to the council but has not been determined. There was some uncertainty over the form of the proposal submitted to the council, and the potential view impacts. I am satisfied however that the proposed study is likely to encroach into the view corridor for any future buildings. The potential views towards the harbour and the Sydney skyline are already restricted by the wedge-shape of the lot, and the indications from the site view are that it will restrict views of the Harbour Bridge. In coming to this conclusion, I acknowledge that any potential view impacts are not as significant as those from Unit 3. 17 Fourth, the relationship between 18 Ian Street and 24 Carlisle Street was considered in terms of views when the former building was approved. While there is no barrier to the submission of a development application to change this relationship, I am satisfied that the approved relationship strikes a reasonable balance in terms of view sharing, and that the proposal unacceptably disturbs this balance. 18 Fifth, and consistent with comments in Tenacity and Pafburn on the necessity of the proposal, I do not accept that the need of the applicant to relocate the existing study, and the desire to use the existing fittings in the study, justifies the unacceptable view loss impacts created by the proposal. 19 Sixth, and consistent with Pafburn, the offending study breaches the height and FSR development standards. Having found that the impact of views is unacceptable, I do not need to fully address the objections provided under State Environmental Planning Policy No. 1 – Development Standards to the height and FSR development standards beyond stating that I find that the proposal is inconsistent with objectives (b) and (c) in cl 11AA relating to FSR, and objectives (a) and (e) of cl 12AA relating to building height. For these reasons, the SEPP1 objections are not well founded. 20 While the council has raised no objection to the extension of the bedroom, the applicant has indicated that unless the Court approves both parts of the application, then the appeal should be dismissed. 21 For these reasons, the orders of the court are: 1. The appeal is dismissed. 2. Development Application 393/2001/1 for alterations and additions to Unit 4, 18 Ian Street, Rose Bay is refused. 3. The exhibits are returned. ___________________ G T Brown 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.