Land and Environment Court of New South Wales CITATION : McGuire v Randwick City Council [2010] NSWLEC 1314 APPLICANT Peter McGuire PARTIES : RESPONDENT Randwick City Council FILE NUMBER(S) : 10512 of 2010 CORAM: Morris C KEY ISSUES: DEVELOPMENT APPLICATION - DEVELOPMENT CONTROL PLAN :- Views Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No. 1 Randwick Local Environmental Plan 1998 Randwick Local Environmental Plan 1998 (Consolidation) CASES CITED: Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 Tenacity Consulting v Warringah [2004] NSWLEC 140 TEXTS CITED: Building Code of Australia DATES OF HEARING: 9 November 2010 DATE OF JUDGMENT: 17 November 2010 APPLICANT Mr D Loether SOLICITOR Bartier Perry LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton SOLICITOR Marsdens Law Group JUDGMENT: The Land and Environment Court OF NEW SOUTH WALES Morris C 17 November 2010 10512 of 2010 Peter McGuire v Randwick City Council JUDGMENT 1 Commissioner: This is an appeal under s97(1)(B) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Randwick City Council (the council) of a development application which proposes the demolition of semi detached terrace dwellings and the construction of two x two storey, five bedroom, attached dwellings with basement garages at Nos. 194-196 Beach Street, Coogee. The application also requires an alteration to the boundaries between the two lots however, whilst comment was made in the statement of environmental effects submitted with the application, no plans of the subdivision were lodged or are before the Court. As the development would involve the construction of the dwellings across the boundary unless the subdivision occurs, the parties were directed to lodge further submissions to address this issue. The site and its context 2 Nos. 194-196 Beach Street, (the site) are located on the western side of the roadway and comprise two allotments, Lots A and B in DP 436142 which have a combined frontage of 13.1m and area of 551.8m2. Lot A (No. 196) is affected by a right-of-footway 875mm-1.015m wide which provides shared pedestrian access to the adjoining residential flat building at No. 198 Beach Street. That site provides a reciprocal right-of-footway 665mm-955mm wide to the site. 3 Lot A is 7.01m wide at its rear boundary and 6.843m at the frontage to Beach Street, whilst Lot B has a frontage of 6.874m and rear boundary of 6.706m. The plans before the Court show the walls of the proposed dwellings centrally located within the site and accordingly, it is necessary for the boundary to be centred and straightened to allow construction of the buildings as designed. The parties agree that is would be necessary for the subdivision to occur before a construction certificate could be issued for the development. 4 A pair of single storey semi-detached dwellings with no vehicular access or on-site parking is currently located on the site. The site slopes from both south to north and west to east so that the rear gardens are terraced to support the higher levels. 5 Beach Street contains a mix of low to medium density development. The site is bound by four storey, two storey and three storey residential flat buildings (RFB) to the north, south and west respectively. Coogee Beach is approximately 350m to the north and a number of large public reserves are located within close proximity to the site. The proposal 6 The application proposes the demolition of the existing semi-detached dwellings and outbuildings and the construction of two new dwellings, one on each lot with adjoining walls constructed adjacent to the common boundary. Each dwelling would comprise a basement garage and storage area, ground floor living, dining, kitchen and terrace areas and two bedrooms. The first floor comprises three further bedrooms, balcony and bathroom areas. 7 Parking for three vehicles in a stacked arrangement could be provided in the northern dwelling (No. 194) and two vehicles in the southern dwelling (No. 196). Two driveway crossings off Beach Street, each 3m in width, are proposed to provide vehicular access to the garages of each dwelling. 8 Leave to rely on amended plans was granted by the Court on 5 November, 2010. Those plans vary from the plans originally notified by the council and the amendments made reflect matters raised in the submissions received in response to the notification and also the issues raised in the joint expert planning report prepared for these proceedings. The main changes to the plans are setting the building back 7.1m from the Beach Street property boundary with consequential relocation of the rear building wall, alterations to the roof and balcony. The purpose of the changes is to improve solar access and view lines from the adjoining residential flat building, No. 198 Beach Street. The Planning Controls 9 The site is zoned Residential 2(c) pursuant to the provisions of Randwick Local Environmental Plan 1998 (the 1998 LEP). This plan was amended on 15 January 2010 by an LEP consolidation which consolidated the provisions of the Randwick Planning Scheme Ordinance, Randwick Local Environmental Plan No 71 (Coogee Precinct) and a number of other environmental planning instruments. The consolidated LEP, known as Randwick Local Environmental Plan 1998 (Consolidation) has a savings provision that requires assessment of this application, which was lodged to the council on 7 December 2009, pursuant to the provisions of the 1998 LEP. 10 The council's Dwelling Houses and Attached Dual Occupancies Development Control Plan (the DCP) applies to the site and provides development controls for the construction of alterations and additions or new dwelling houses and attached dual occupancy development and ancillary structures. 11 The 1998 LEP has, in clause 9, a requirement that, for consent to be granted to the carrying out of development, consideration of the objectives of the plan and specific objectives of the zone within which that development is proposed must be made. 12 The relevant objectives of the 1998 LEP are: (c) to create a broad framework of planning controls within which the Council may prepare development control plans to formulate and adopt more detailed policies and guidelines relating to matters of significance for local environmental planning, and (f) to facilitate and encourage community consultation and participation in the planning process, and (g) to promote, protect and enhance the environmental qualities of the City, and (h) to recognise the importance of ecological sustainability in the planning an development processes, and (i) to recognise the responsibilities of accountability in the planning processes, 13 The relevant objectives of the Residential 2(c) zone are: (a) to allow a variety of housing types within residential areas, and (c) to enable residential development in a variety of medium density housing forms where such development does not compromise the amenity of surrounding residential areas, 14 The erection of a dwelling house is permissible with consent on land within the Residential 2(c) zone. In order for the dwelling house to be built as shown on the plans and comply with the provisions of the Building Code of Australia (BCA) it would need to be contained wholly within the allotment. Accordingly, the boundary adjustment is required before the development can proceed. 15 Development consent is required, pursuant to clause 21 of the LEP for subdivision unless, pursuant to clause 26, the development is exempt of complying development. 16 Clause 30 provides development standards for minimum allotment sizes and in a Residential 2(c) zone, the minimum area is 325 square metres and minimum frontage is 9 metres. Subclause 5 has the effect of allowing the erection of a dwelling house on an allotment of land that existed as a separate allotment on the day the LEP was made. This subclause would allow the development to proceed on the existing allotments however, does not apply to the proposal to vary the boundary between the two lots. Further discussion on this issue is provided later in this judgment. 17 The DCP provides controls for the construction of dwelling houses on the site and operates on a hierarchy of controls using a "performance" approach to design guidance and development control. To gain approval, developments must fulfil the relevant objectives for each control. The performance criteria provide the means by which a development will achieve the objectives. Preferred solutions are offered and illustrate how the performance requirements may be achieved in the design of developments but are not compulsory, rather, they are a guide of what would deemed to be compliant. Relevant parts of the DCP are Part 3 - Ecologically Sustainable Development, Part 4 - Building Design and Part 5 - Examples. Definitions applied are included in the Dictionary at the end of the plan. The issues 18 The matters of contention are: - Bulk and scale of the development and its impact on the streetscape; - Impact on adjoining properties, in particular solar access and loss of views; - Visual impact of driveways and loss of on-street parking. - Extent of non-compliance with the council's DCP, in relation to floor space ratio (FSR), building height and solar access to adjoining premises. 19 In addition, during the hearing, the issue of the need to subdivide the land became apparent and needs to be addressed. Site view 20 The hearing commenced on site when evidence was heard from the owners of adjoining properties, all of whom, apart from the recent purchaser of one adjacent unit, had lodged submissions of objection to the council. A view of the adjacent premises was conducted in the company of the owners of those properties and the experts where they provided the Court with details of their concerns and indicated the extent of solar access and view loss that they would experience if the development was approved. 21 Those residents of the property immediately to the south of the site, No. 198 Beach Street, a two storey RFB containing four units, two on ground level and two on the first floor had different issues regarding the plans before the Court as well as common concerns, particularly in relation to the impact of construction works and the bulk, scale and height of the building which, they say is contrary to the council's controls for the site. 22 The owner of Unit 1, the lower, front unit, was concerned about the height of the entry terrace, which would be in line with her front verandah. She was concerned that this would result in loss of the current privacy she enjoys due to the slope of the land and the front terrace area of the current site being lower in accordance with the topography of the site. She conceded that many of the changes made to the plans had addressed her concerns in relation to view loss however was still concerned about the height, bulk and scale of the development and the fact that it significantly exceeded the council's controls for dwellings. 23 The owner of the rear, ground floor unit (Unit 2) was concerned about loss of sunlight and sea breezes to the unit and the rear yard, which she said is used by her two children to play as there is no balcony or private outdoor space available to her unit. Currently, the living room and children's bedroom receive sunlight for the majority of the year and she did not want to see this solar access decreased by the development. As no plans had been prepared which indicated the impact of changes made to the development by the amended plans, she was not satisfied that the solar access would be retained. Concerns regarding privacy were also raised, particularly in relation to the two windows, one to bedroom 5 and one to bedroom 2 of the proposed dwelling at No. 196, which were not shown as being finished with obscure glass. 24 The owner of the front, first floor unit (Unit 3) was concerned about the loss of views from her living and dining room windows which are located in the northern or side elevation of that unit. Currently, the view from those rooms is to Coogee Beach, including the land/water interface, the headlands to the north, and longer distance views to Clovelly, the Waverley Cemetery, the coast walk, district and ocean views. The owner stated that, as the plans exceeded both the council's height and FSR controls, the building could be redesigned to preserve this view and still allow view sharing with the new development. 25 The owners of the rear, top floor unit (Unit 4) were concerned about the view loss and solar access impacts of the development and also agreed, that without shadow diagrams of the amended proposal, they were unable to ascertain the precise impact of the development on their property. Concerns were also expressed about the privacy impacts on the unit due to the proximity of windows to their bedroom window. They also had similar concerns to other residents of the impact of the development on the solar access available to the common yard area, which they used for clothes drying and children's play area. 26 All residents of the No. 198 Beach Street RFB were concerned about the impacts of the excavation of the site in close proximity to their building and the right-of- footway. They were concerned that the works may affect the structural stability of the unit block and their access to their residences during construction. 27 An inspection of the roof deck of the rear unit at No. 200 Beach Street was also conducted and the concerns of the owner of that property in relation to view loss, particularly his concern about the impact of the building on his views of the land/water interface were discussed between the parties. 28 The final property inspected was a unit within the RFB immediately to the rear of the site. View loss is the concern of the owner's of this property and the impacts of the proposed building on the current view available were demonstrated. 29 The owner of a RFB opposite the site expressed his concerns about the design, height, bulk and scale of the proposed development, which, he says, is out of character with this section of Beach Street. 30 At the conclusion of the view, garages of dwellings further north along Beach Street were inspected. These garages were incorporated into sandstone walls erected on the front or street property boundary. The evidence 31 Expert town planning evidence was heard from Mr M Neustein for the applicant and Mr S Harding for the council. The joint expert report prepared for the hearing and tendered as Exhibit 7 in these proceedings concluded that, subject to further amendments being made to the plans, the impact of the proposed development, in terms of bulk, scale, solar access and view sharing, to adjoining properties would be minimised. It is those recommendations that informed the re-design of the development that were incorporated in the amended plans now before the Court. 32 As no further report was prepared by the experts following preparation of the amended plans, further assessment of those plans in relation to the council's contentions is required. 33 The experts have concluded that the two primary issues in this matter are solar access and view loss. Their expert report is confined to those issues, but specifically, only to the impact of view loss on Unit 3, No. 198 Beach Street and solar access to the living room window of Unit 2 within that same building, rather than addressing the full range of contentions raised by the council. 34 Mr Seton, for the council, questioned both experts why their report was limited to the two issues and did not explore the other contentions. The reply given was that they had both considered the issues of garage location and streetscape and were of the opinion that compliance with the council's DCP was not warranted in the circumstances of the case. Solar access 35 In relation to solar access, shadow diagrams demonstrating the impact of the amended plans on adjoining properties had not been prepared despite having been asked for by the Court when leave was granted to rely on those amended plans. 36 The objectives of the DCP for solar access and energy efficiency include to protect solar access enjoyed by neighbours. The performance requirements are that the design and siting of new buildings, alterations and additions to existing buildings and landscaping minimises loss of solar access to neighbouring properties. Solar access is to be maximised to the north facing windows of living areas and the principal outdoor recreation space of neighbouring properties. The preferred solutions require north-facing windows to living areas of neighbouring dwellings receive at least 3 hours of sunlight over at least part of their surface between 9.00am and 3.00pm on 21 June. If less than 3 hours is available under current conditions, access to sunlight is not reduced. 37 Mr Neustein had drawn some lines on an earlier version of the first floor plan which, he says, indicates that the living room of the lower, rear unit at No 198 Beach Street will receive full sunlight from 11.30am to 1.30pm in midwinter. Mr Harding agrees. 38 Neither expert could quantify the precise extent of sunlight that would be lost to this window however they agreed that the window would receive some sun for a period of between 2 hours and 20 minutes and 2 hours and 30 minutes. It was also agreed that the window currently receives in excess of 3-3.5 hours sunlight in winter and accordingly, there would be a reduction in the amount of solar access to that unit. Mr Harding stated that he thought the resultant sunlight available was sufficient and that the council requirement of at least three hours was onerous. Floor space ratio, bulk and scale 39 Part 4 of the DCP provides controls for various aspects of building design. The objectives of section 4.2.1 are to ensure developments are not excessive in bulk or scale but are compatible with the existing character of the locality. The performance criteria is that building bulk must be compatible with surrounding built forms and must minimise adverse effects of bulk on neighbours, streets and public open space. The preferred solution for dwelling houses erected on lots with a site area up to 300m2 is a maximum FSR of 0.65:1. 40 Neither expert could confirm the FSR of the development however they agreed that the FSR would be somewhere in the vicinity of 1.08:1 for Lot B and 1.18 for Lot A. Mr Seton quantified this variation from the DCP provision of 0.65:1 as being an additional floor area of approximately 118m2 for Lot B and approximately 146m2 for Lot A and equated this to the area of four and six double garages respectively, arguing that the variation is not minor and did not meet the objectives of the DCP. 41 Mr Harding stated that the building alignment is fixed by the adjoining developments and any change to the FSR would not change solar access issues as the issue is in the centre of the site. Mr Neustein agreed that the additional FSR would contribute to the impact of the development on the adjoining property however was of the view that so too, would a complying development as any two storey development on the site would result in over-shadowing. He added that much of the issue is the result of the adjoining RFB being constructed only 700mm from the common property boundary. Building Height 42 The experts agree that the maximum wall height of the dwelling on Lot A is in the vicinity of 7.58m. This was obtained from scaling the plans and interpolating the data provided from the survey plans. Inadequate detail had been provided on the plans to properly assess this detail. It was agreed that the building height contravened the 7m maximum height established under part 4.3 of the DCP however the experts considered the variation to be reasonable in light of the adjoining development and advised that a reduction to the building height would not improve solar access to No 198 Beach Street. I note that the building wall height on its northern elevation exceeds 8m. Whilst this does not impact the adjoining property to the north in terms of solar access, it is an issue that affects view lines and is addressed later in this judgment. Cut and fill 43 Part 4.3 also includes controls which require development to relate to the topography of the site and limit the extent of cut/fill to 1m. Excavation up to 3m is proposed. Setbacks 44 Part 4.4 of the DCP applies to building setbacks and has as objectives to integrate new development with the established setbacks of the street and maintain the environmental amenity of the streetscape; to ensure dwellings have adequate access to natural light, daylight and fresh air. 45 The predominant setback of this section of Beach Street on its western side is the approximate alignment of the existing dwellings on the site and can be observed from the aerial photographs tendered as Exhibit 5. No. 198 Beach Street is constructed further forward and the access to the garaging for the RFB at No. 200 is provided in a structure that extents to the front property boundary. The proposed development incorporates garaging erected on an alignment of 2.8m to Beach Street, which is in line with the front façade of No 198. The first floor level is setback 7.1m from the front boundary. 46 This setback control is aligned to Part 4.7.1 which deals with garages, carports and driveways and has as objectives to ensure on-site parking and driveways are not visually obtrusive and do not detract from the appearance of dwellings or the local streetscape; to provide convenient and safe car parking access. 47 I note that the plans comply with the minimum 4.5m rear and 1.5m side boundary setbacks. Parking and garages 48 The DCP requires parking to be provided at the rate of two spaces for dwellings which contain 3 or more bedrooms. The proposal meets this control. Another requirement is that parking structures do not dominate or detract from the appearance of the development and the local streetscape; and are to be compatible in scale, form, materials and finishes with the associated dwelling. The preferred solution is to have garages located behind the building line. 49 Mr Harding considers the front setback and garage treatment is appropriate and Mr Neustein referred to a number of properties in Beach Street to the north of the site that have garaging incorporated in the front boundary fence. He is of the opinion that the design proposed is satisfactory and has the benefit of incorporating landscaping to soften the appearance of the garage wall. Privacy 50 Part 4.5 of the DCP deals with visual and acoustic privacy and requires, where windows are not offset by more than 450 from windows in adjoining properties to incorporate obscure glass. As noted in paragraphs 23 and 25 of this judgment, there are two windows, each servicing a bedroom that do not comply with the DCP provision of incorporating obscure glazing below 1.5m above floor level. Mr Neustein considered this an unreasonable control for a bedroom. 51 Part 5 of the DCP provides diagrammatic examples of the form that development would take to be considered acceptable. It includes an example, in Figures 5.6 and 5.7, of where a garage below two dwelling levels is both acceptable and unacceptable. The plans before the Court do not fall within either example and, as stated in paragraph 49 of this judgment, both experts consider the objectives of the DCP are met. Impact on views 52 Loss of views was an issue raised by five of the residents who gave evidence on site. It was agreed by the experts that the amendments made to the plans would address the concerns regarding view loss of the resident of Unit 1, No. 198 Beach Street. 53 The development would have the greatest impact on views from Unit 3, No. 198 Beach Street. These views were classified by the experts as highly valued. They are views which include the shoreline and surf of Coogee Beach, the Pacific Ocean and the coastal view northwards towards Clovelly and beyond and would be considered to be "whole" views. 54 The experts noted that the views were side views and were enjoyed from both a sitting and standing position within the living and dining rooms of the unit. It was agreed by the experts that this view would be lost from the dining area and would be limited to a standing view from the front third of the living room window with much of the Coogee Beach and primary headland view lost. The view beyond that point would be retained from that section of the window. 55 The experts agreed that the same view was available and would be retained from the front balcony of Unit 3 and considered this sufficient. 56 Views from Unit 4 at No. 198 are restricted to a standing water glimpse at a very acute angle from the side windows of this dwelling. The experts agreed that any compliant, two-storey development erected on the site would affect these views. 57 Water views from Unit 4 No. 200 Beach Street are enjoyed from the rooftop terrace and it was agreed that a small portion of that view would be lost if the development was allowed. The current land/water interface would be retained and the experts agreed that the impact was minor. I agree. 58 Views from the Neptune Street property are ocean views across rooftops and are available from the living and dining room windows and the deck area. The experts agree that the proposed development would remove all other than a sliver of views available between the proposed building and the adjoining RFBs and considered this acceptable. The subdivision 59 The parties agree that the proposal to adjust the common boundary between the two lots would involve the subdivision of the site. As the issue of the subdivision had been overlooked during the assessment process and in preparation for the hearing, no consideration of whether the application could be approved had been made. For this reason, I adjourned the hearing to allow for written submissions on this issue. 60 Those submissions agree that the proposed boundary adjustment will result in two lots being created that are less in area and frontage than that required by the development standards of clause 30(1A) of the LEP. It is therefore necessary to determine whether the development could be the subject of a separate application for complying development or whether an objection, pursuant to the provisions of State Environmental Planning Policy No. 1 is required. No such objection accompanied the development application. 61 The council's Development Control Plan - Exempt and Complying Development (the 2007 DCP) is called up by clause 26 of the 1998 LEP. That DCP provides for development that meets certain criteria to be approved by way of the grant of a Complying Development Certificate rather than requiring a development consent. The 2007 DCP specifies the following development to be complying development: Is limited to: 16. Subdivision, boundary * Minor boundary adjustments between 2 allotments where no additional allotments will be created and which does not result in more than 10% variation in the size of the lots. adjustment and * Rectifying encroachments provided that the rectification does not result in more than a 10% variation in the size of the lots. consolidation * Does not result in the reduction of a residential lot size to less than the minimum lot size specified in Council's LEP. Does not apply to development in * Creating allotments to be dedicated as a public reserve (but not if it involves the public acquisition of that land. Heritage Conservation Areas where * Excising from an existing allotment, land that is, or is intended to be used for a public purpose, including drainage, fire brigade and other rescue service purposes (but not if it involves the public acquisition of that land). the subdivision has a negative * Consolidating allotments. impact on the heritage * Adequate provisions are to be made for the drainage of stormwater of all affected lots to the satisfaction of Council. Stormwater must be discharged to the street gutter or Council stormwater drain, which may require works and or creation of easements. significance. Advisory Note: All subdivision other than minor boundary adjustments and encroachment rectifications must comply with the subdivision requirements of Randwick LEP 1998. If the subdivision is within a heritage conservation area, you are required to consult with Council's Heritage Planner before requesting a CDC. 62 The parties agree that, as the two allotments are already less than the minimum lot size prescribed by the 1998 LEP, the subdivision could be undertaken as complying development. Certification and registration of the subdivision would be required prior to the issue of a construction certificate for the dwellings. Findings 63 I concur with the council that the lack of detail provided in relation to the plans before the Court did not assist the residents in understanding the amended plans. I also note that there are a number of anomalies in the amended plans in relation to levels and accordingly, this fact, along with the lack of dimensions has made it difficult to precisely calculate FSR, height and extent of excavation and reliance on scaled dimensions has been required. The provision of shadow diagrams would have greatly assisted the residents' understanding of the amendments and may have satisfied them that the impacts of the development were acceptable however, at this stage, this is not the case and their concerns remain. 64 In his submissions, Mr Loether for the applicant referred me to the Statement of Environmental Effects (SoEE) that had been prepared by Mr Neustein in support of the application which, he said, would provide further evidence that the development was appropriate for its context and detail those areas of the council's contentions not addressed in the joint expert report. 65 I note that Mr Neustein has, in relation to building height and FSR, adopted the standards that apply for buildings other than dwelling houses (i.e. for RFBs) and argues that these standards are more appropriate in the circumstances of the case because of the form of development on the adjoining lands. Whilst I accept that he has had regard to the dwelling house controls of the council's DCP, I am concerned that he, and Mr Harding in relation to solar access controls, has adopted another standard. Mr Harding stated that the council's control of three hours solar access control was "onerous". It is important that the intent of the controls is primary to consideration and that they are not disregarded as general policy. The Court of Appeal, in Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226 makes this distinction where it is stated that "the Commissioner was not entitled to take the view that the standards set by the DCP were inappropriate for reasons of general policy". 66 Whilst I accept that the adjacent development is of a higher FSR, those buildings are RFBs and not dwelling houses. I note that the building to the north, being a newer development, is set well off the side boundaries, which is a requirement for development of RFBs under the council's DCP so as to protect the amenity of the adjoining property. The proposed development on the site is not a RFB and accordingly, does not enjoy the right to utilise those controls that apply for that form of development unless the objectives of the controls are met. Nor does it propose to provide the boundary setbacks that are applicable to RFBs. I note that Mr Neustein argues the objectives are met in relation to the controls for cut/fill, excavation and views to private open space but rather adopts the controls for RFBs for FSR and building height. He does not argue, in the SoEE that the objectives for those controls are met. 67 I do not accept that this is a correct approach to follow unless the objectives of all of the controls are met. I do not have any evidence available to me that demonstrates that the proposed development, with the FSR of at least 1.08:1, minimises adverse effects of bulk on neighbours. I also note that this FSR is in excess of that allowed for the construction of a RFB, which has a 0.9:1 maximum that reduces to 0.65:1 for sites less than 700 square metres. Such control accords to that for dwelling houses on the site. 68 Similarly, I have no evidence that the height objective of ensuring buildings "preserve privacy and natural light access for neighbouring residents" and "allow a sharing of views" has been met. 69 I agree with the planning experts that the amendments made to the plans, have gone some way to addressing the view and solar access impacts. I do not however, share their view that the development satisfies those objectives of the council's DCP to such an extent that would justify its approval. 70 I do accept that the character of the locality varies from semi-detached houses to four storey RFBs and accordingly, there is no consistent streetscape. Accordingly, an assessment of the impact of the proposed development suggests that there may be some argument to allow a larger building than that which is contemplated by the council's DCP provided the objectives of that plan are met. 71 I also agree that the building, No. 198 contributes to the problem, due to its proximity to the boundary, however this is a legacy of history and still requires consideration. 72 Applying the planning principles of Roseth C in Tenacity Consulting v Warringah [2004] NSWLEC 140 I agree with the experts that the views available from the site and the adjoining property, particularly Unit 3 No. 198 Beach Street are highly valued. Those views are enjoyed from the living and dining rooms of that dwelling and whilst they are side views, they are the primary views from that dwelling and, given the circumstances in this case, are views that can be maintained, particularly from the living room, with minimal redesign of the proposed development. The experts description of the view loss would classify it as severe and accordingly, given the areas of non-compliance of the development in relation to height and particularly FSR, the application must fail as it does not meet the controls and objectives of the council's DCP. 73 I do not accept the view of the experts that in this case the FSR is only about solar access. I consider the dwellings as proposed are too big, and that there are options to set the building back at the front, upper level of No 196, so as to reduce its impact on adjoining property's view loss. Similarly, a reduction in the building height would improve views from adjacent properties and this could be readily achieved through re-arrangement of stairways and reduction in the floor to ceiling height of the development. With a few more minor changes, the objectives of the council's DCP could be achieved, the development would not need to be reduced significantly in size and the amenity of neighbours could be preserved. 74 Given the constraints of the site, I consider the garage arrangements to be satisfactory, particularly if the floor to ceiling heights were minimised. The garages are to be constructed in line with the adjoining development and are forward of the main dwellings in order to improve solar and view access to adjoining properties through the increased upper floor setbacks. 75 In relation to location of windows/privacy, such concern can be addressed by use of obscure glass or higher sills. 76 The extent of excavation proposed is to be balanced with the need to limit the height of the dwellings however, is exacerbated by the size of the proposed storerooms. I am satisfied that, with proper construction techniques, the site can be developed without affecting the structural integrity of adjacent buildings. Conclusion 77 Given the extent of non-compliance with the council's controls, particularly in relation to FSR and height, and its impact on the amenity of adjoining properties, the application must fail. 78 Whilst the location of the site in proximity to other residential flat buildings does justify some variation to the DCP provisions, such variation should only be allowed where the objectives of that plan are met. I am not satisfied that this is the case. 79 It would be possible to carry out further amendments to the plans which reduce the building height so as to meet the controls set in the DCP and to amend the design of the upper level, front portion of the dwelling on Lot A so as to preserve the standing view from the living room window of Unit 3 No. 198 Beach Street. Further changes to the roof of the dwelling on Lot A may be required to ensure that the living room window to Unit 2 No. 198 Beach Street maintains its solar access. These changes should also improve views from other adjoining properties. 80 I do not consider that it is appropriate to allow the appeal subject to conditions, which require further amendments to the plans, as such changes need to be incorporated into a new building design and proper assessment of such a proposal by the council would be required. 81 Any subsequent application should also address the issue of the boundary adjustment. 82 Therefore, the Orders of the Court are: 1. The appeal is dismissed; 2. Development application No. DA/909/2009 for the demolition of existing semi-detached dwellings and the construction of new two storey attached dwellings with basement garages is determined by the refusal of development consent; and 3. The exhibits are returned. ______________________ Sue Morris 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.