Land and Environment Court of New South Wales CITATION : Dodaro Robert v City of Canada Bay Council [2008] NSWLEC 1406 APPLICANT Dodaro Robert PARTIES : RESPONDENT City of Canada Bay Council FILE NUMBER(S) : 11303 of 2007 CORAM: Murrell C KEY ISSUES: Development Application :- 2 x 2 attached dual occupancies to be constructed on 2 separate lots; view loss from adjoining properties; impact when viewed from waterway; exceedence of height and storey controls and impact on adjoining heritage park. Environmental Planning and Assessment Act 1979 Sydney Harbour Foreshores and Waterways Area DCP LEGISLATION CITED: Sydney Harbour Catchment Sydney Regional Plan of 2005 Drummoyne Local Environmental Plan 1986 Canada Bay Local Environmental Plan 2008 Drummoyne Area Comprehensive Development Control Plan 1986 CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 DATES OF HEARING: 01/05/2008 and 02/05/2008 DATE OF JUDGMENT: 15 October 2008 APPLICANT Mr A. Pickles, barrister Instructed by Avendra, Singh, Strati and Kam LEGAL REPRESENTATIVES: RESPONDENT Mr P. Jackson, solicitor of Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 15 October 2008 11303 of 2007 Dodaro Robert v City of Cananda Bay Council JUDGMENT 1 The Applicant in these proceedings is seeking to erect four dwellings. The proposal is for the development of two adjoining allotments each with an attached dual occupancy on each lot. The site is made up of Lots 7 and 8 known as 4A and 2A Checkley Street Abbotsford. Lot 7 is 730 sq m including the access handle from Hunter Street and Lot 8 is 673 sq m. 2 The northern boundary has waterfrontage to Parramatta River on Hen And Chicken Bay. The lots have a common boundary with No. 2 and No. 4 Checkley Street. The eastern side the site is adjoined by Battersea Park and to the west there is a dwelling house on a large lot that extends from the street frontage to the foreshore. Refer to figure 4. 3 By way of background the subject two lots are the result of the subdivision of a large parcel of land to create four Torrens Title lots (refer to Figure 1). This was approved by Council in October 2003. On No. 2 there is currently a dwelling house nearing completion for Lot 5 the corner of Checkley and Hunter Streets. For Lot 6, No. 4 there is a plan for a new dwelling house that has been approved by council. 4 The street has a variety of development. Adjoining Quarantine Park at No. 14 is the Newington Boat Shed and there are dwelling houses at numbers six, eight to ten, one, three, five, and eleven and a residential flat development at 7 Checkley Street. 5 This matter commenced as a section 34 conciliation conference, however no agreement was reached and the parties consented to me determining the appeal and the following judgement is under section 34(5) of the land and environment Court Act. The Proposal 6 The amended proposal before the Court is for the demolition of: the in-ground swimming pool on the mid-level and the sandstone boat shed on the lower level near the foreshore; and the development of lot 8 known as number 2A Checkley Street and lot 7 known as 4A to each be developed with an attached dual occupancy. That is a total of four dwellings is proposed. The Council raises no objection to the demolition of the sandstone boatshed. Contentions 7 The Council prepared a Statement of Facts and Contentions and the contentions identified are as follows: View Loss and View Sharing The proposal does not comply with the height limit, side boundary setbacks , or the view sharing principles contained in Parts 6.4, 6.5, 6.6 and 6.7 of the Drummoyne Area Comprehensive Development Control Plan and Part 5.2.5 of the draft City of Canada Bay Development Control Plan. The proposed development does not comply with clause 26(a), clause 26(b) and clause 26(c) of the Sydney Harbour Regional Environmental Plan (Sydney Harbour Catchment) 2005. Particulars Part 6.7 of the Drummoyne Area Comprehensive Development Control Plan in that the buildings have not been designed to allow for the appreciation of public views and vistas and do not enhance views from the public domain. The proposed developments, as a result of the non compliances and consequent bulk, scale and spread across the two site does not address the intent of clause 26(a), clause 26(b) and clause 26(c) of the Sydney Harbour Regional Environmental Plan (Sydney Harbour Catchment) 2005 in consequence of which the proposed development is considered to be inappropriate, excessive and that it will adversely impact on views to and from the land and the waterway. The impact of the proposed height of the development has not been adequately addressed in terms of the Controls contained in Part 5.2.5 of the draft City of Canada Bay Development Control Plan with regard to the existing views from the properties immediately to the rear of the site at No.'s 2 and 4 Checkley Street, Abbotsford. Appearance from Waterway and Impact on Foreshore Environment The proposal does not satisfy Objectives 02, 04, 05 and 06 in Part 6.4 - Desired Future Character Objectives for Character Unit 1 - Peninsula Areas, and Part 6.5 - P7, P8 of the Drummoyne Area Comprehensive Development Control Plan, maximum Floor Space Ratio controls for dual occupancy development contained in the draft Local Environmental Plan for the City of Canada Bay, the objectives contained in Part 5.2.2 of the draft City of Canada Bay Development Control Plan, and does not satisfy the guidelines contained in Part 5 of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) Development Control Plan for Siting of Buildings and Structures (5.3) and Built Form (5.4). The proposed development does not comply with the objectives and detailed requirements of clause 6.5 M3 and Table 6.1 of the Drummoyne Comprehensive Development Control Plan, which provides for a maximum height of two storeys for attached dual occupancy developments. The application, in accordance with the requirements of clause 6 of the Drummoyne Local Environmental Plan, which references clause 5 of the Model Provisions 1980, requires that the probable aesthetics of a development when viewed from inter alia a waterway or public park, must be considered. The proposed development is contrary to the objectives and detailed requirements of clause 25(a) and clause 25(b) of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005. Particulars The bulk, height, scale and built form of the proposed development is likely to have a detrimental impact on the setting of the adjoining Battersea Park, the foreshore and waterway. The design of the proposal is of a rectangular, 'boxy' shape with a flat roof, which combined with certain elements of the proposed colour scheme, is unlikely to harmonise with its surroundings and is discouraged under Part 5.4 - Built Form of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) Development Control Plan. The bulk and scale of the development is excessive at approximately 0.8-0.85:1 when the draft Local Environmental Plan for the City of Canada Bay will set a maximum Floor Space Ratio for dual occupancy development of 0.5:1. The proposal extends across the width of the site resulting in a design that does not break up the facades and roof lines into smaller elements and does not incorporate pitched roofs as recommended in Part 5.4 - Built Form of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) Development Control Plan. Having regard to the requirements of clause 6 of the Drummoyne Local Environmental Plan and in consideration of the probable aesthetics of the proposed development when viewed from the waterway the view of the Foreshore Waterways and Development Advisory Committee are supported including that "the bulk and scale of the proposal is excessive as viewed from the water, specifically the height of the building and the full width coverage of the site". It is also considered the development is out of character in the flat immediate foreshore environment, it is uncharacteristic and does not appropriately respond to the sensitive foreshore environment and waterway context. The proposal involves extensive excavation works to create basement storage areas and is contrary to the Performance Criteria contained in P7 of Part 6.5 of the Drummoyne Area Comprehensive Development Control Plan, and C1 and C12 of Part 5.2.2 of the draft City of Canada Bay Development Control Plan, and will adversely impact on the integrity of the rock outcrops and dramatic topography on the site which is discouraged by Part 3 - Landscape Assessment under the Sydney Regional Environmental Plan (Sydney Harbour Catchment) Development Control Plan. The extension of the proposed building works across the entirety of the width of the site does not protect the integrity of the rock outcrops and dramatic topography on the site or provide a high quality built and landscape design as recommended in Part 3 - Landscape Assessment of the Sydney Regional Environmental Plan (Sydney Harbour Catchment) Development Control Plan. Public Foreshore Access The proposal does not comply with objective 2(d) of the Drummoyne Local Environmental Plan 1986, the Objectives and Performance Criteria contained in Part 6.15 of the Drummoyne Area Comprehensive Development Control Plan, Objective 1.2(h) and Clauses 6.4 and 6.5 of the draft Local Environmental Plan for the City of Canada Bay, Clauses 14(b) and (c) and Clauses 22(a), (b) and (c) of Sydney Regional Environmental Plan (Sydney Harbour Catchment), the Foreshore Access Policy and Policy of Council adopted on 17 October 2003. Particulars The proposal does not include the provision of a public foreshore access in accordance with Council's policy adopted on 17 October 2003. A minimum 3 metre wide easement for public foreshore access along the full extent of the foreshore frontage of the site to Hen and Chicken Bay is required under the terms of this policy. The subject site adjoins Battersea Park that is listed as a heritage item under the Drummoyne Local Environmental Plan 1986. The development involves a significant site which is ideally located to achieve the objectives of extending public foreshore access contained in the Drummoyne Local Environmental Plan 1986, Sydney Regional Environmental Plan (Sydney Harbour Catchment), the Drummoyne Area Comprehensive Development Control Plan, the draft Local Environmental Plan and draft Development Control Plan for the City of Canada Bay. Impact on Heritage Item The proposed works, particularly the removal of existing trees, the landscape design proposed and the structures to be located in the area between the proposed dwellings and the boundary with Hen and Chicken Bay, are likely to have an adverse impact on the heritage significance and setting of Battersea Park, and will not satisfy objective 2(e) and Clause 22C of the Drummoyne Local Environmental and the objectives and provisions contained in Clause 5.10 of the draft Local Environmental Plan for the City of Canada Bay. Particulars The proposal involves the removal of trees from the area adjoining the eastern boundary with Battersea Park which is listed as a heritage item under the Drummoyne Local Environmental Plan 1986. These, trees make a contribution to the tree canopy of the Park and its environs and their removal will adversely impact on the heritage significance of the Park. The replacement plantings in the vicinity of the Park are non­indigenous species and are likely to adversely impact on the foreshore environment of the Park. The height, bulk, scale and design of the proposal is uncharacteristic of the residential area surrounding the site and Battersea Park and is likely to adversely impact on the foreshore environment of the Park, the historic features of the Park and its immediate surroundings. The Proposal is not in the Public Interest The proposal has been publicly notified and six (6) submissions have been received by Council in response to this process raising objections to the proposal. Particulars In accordance with the provisions of section 79C(1) (e) of the Environmental Planning and Assessment Act 1979 the cumulative effects of the proposed developments are not in the public interest. (a) The objectors have raised the following issues in their submissions to Council: o View Loss o Proposal Exceeds Two Storey Height Limit o Excessive Bulk, Scale and Floor Space o Proposal does not Comply with Side Boundary Setback Requirements o Garage Doors will Dominate Facade as viewed from Hunter Street o Design is not in Conformity with the Dominant Style of Dwellings in the Vicinity of the site o Proposal does not Comply with Side Boundary Setback Requirements o Garage Doors will Dominate Facade as viewed from Hunter Street o Design is not in Conformity with the Dominant Style of Dwellings in the Vicinity of the site o Loss of Privacy of Overlooking Impacts (b) Having regard to the cumulative adverse environmental affectation arising from the loss of views, the loss of public amenity in the foreshore and waterway area, the impacts of the developments when viewed from the waterway and Battersea Park, the impacts of the adjoining Battersea Heritage Park, the number of non compliances in respect of planning control standards which raise further adverse environmental impacts and that the proposed developments do not include provision for public access, it is considered that the proposed developments are contrary to public interest. Statutory Planning Framework 8 The Sydney Harbour Foreshores and Waterways Area DCP for the Sydney Harbour Catchment SREP 2005 describes the area as: The character of these areas ranges from a flat to a sloping terrain there are often open spaces and some residential areas along the foreshore. The open space is predominately grassed with few trees. The shoreline is mainly built up, often with a sea wall, with pockets of natural shore line do occur. Residential development forms a backdrop to these areas. The intent for development with in this area is to provide for appropriate recreational and similar uses of the foreshore, to rehabilitate or improve degraded foreshores and to protect valuable natural shorelines. 9 The performance criteria for this area which include Hen and Chicken Bay is that Any development with in this landscape is to satisfy the following criteria: * It enhances the recreational focus of the foreshore; * It is sited so that natural features are protected and uses of these features are maintained; * Pockets of natural shoreline retained; * Landscaping is incorporated into the proposal. This is landscape character type 12 in the DCP. 10 In terms of foreshore access the DCP states that public access to the foreshores is to be encouraged and where ever possible public access to and along the foreshore including the intertidal zone should be secured or improved. Most desirable are foreshore links adjoining public open spaces or access points. They can be obtained by right of way or dedicated or required strips of land and may links with tracks across beaches and rocks platforms. Where foreshore access can not be achieved, a linkage through adjacent streets is usually possible. 11 Under the section for Built Form in the DCP it states "Buildings and other structures should generally be of a sympathetic design to their surroundings". Several guidelines are provided to reinforce local requirements and these include o While no shapes are intrinsically unacceptable, rectangular boxy shapes with flat or skillion roofs usually do not harmonise with their surroundings. It is preferable to break up facades and rooflines into smaller elements and to use pitched roofs, o Accumulative visual impact of a number of built elements on a single lot should be mitigated through bands of vegetation and by articulating rules and using smaller elements. 12 Under the section on planting the DCP "Vegetation in the form of bushland, remnant native species and cultural planting has important ecological and landscape values that require protection and enhancement". A number of criteria are identified o Appropriate species of those found in the surrounding landscape should be incorporated o Existing mature trees should be retained where possible and incorporated into the design of the new developments 13 The map to show ecological communities and landscape characters shown at figure 4 identifies the subject site as urban development with scattered trees adjoining grassland open space. 14 The Sydney Harbour Catchment Sydney Regional Plan of 2005 contains a number of relevant clauses for the assessment of the development application. The matters to be taken into consideration at Clause 22 in relation to public access are as follows a. Development should maintain public access too and along the foreshore, without adversely impacting on watercourses, wetlands, repairing lands or remnant vegetation. b. Development should maintain and improve public access too and from the waterways for recreational purposes… c. If foreshore land made available for public access is not in public ownership, development should apply appropriate tenure and management mechanisms to safe guard public access too, and public use, of that land. 15 Clause 25 states matters to be taken into consideration in view of the maintenance protection and enhancement of the scenic quality of foreshores and these are as follows a. The scale, form, design and siting of any building should be bases on analysis of i. The land on which it is to be erected ii. The adjoining land iii. The likely future character of the locality 16 Drummoyne Local Environmental Plan 1986 zones the subject site as Residential 2(b). The objective is "to provide predominately a residential zone which also permits a limited range of small scale professional and community uses to serve the population." 17 The Canada Bay Local Environmental Plan 2008 was gazetted 7 March 2008. Contains a savings provision relating to pending development applications and this plan must be taken into consideration as if the plan had been exhibited but not commenced. The aims of this plan include (H) to provide measures to retain and where possible to extend, public access to the foreshore areas of Canada Bay and to control development in those areas (J) to provide clarity and certainty for the community and development applicants, while allowing flexibility to respond in needs. 18 Under the 2008 LEP the subject site is zoned Medium Density Residential (R3). The objectives of this zone o · To provide for the housing needs of the community within a medium density residential environment o · To provide a variety of housing types within a medium density residential environment o · To facilitate public access too and along the foreshore. Development permitted within the zone with consent includes attached dwellings, dual occupancies, dwelling houses, multi dwelling housing and residential flat buildings. 19 The LEP 2008 also provides a Residential (R1) Zone general residential and (R2) Low Density Residential Zone. 20 Clause 6.4 requires consideration to the extent that the development would encourage the following a) Continuous public access too and along the foreshore through or adjacent to the proposed development, b) Public access to link with existing or proposed open space c) Public access to be secured by appropriate covenants, agreements or other instruments registered on the title of the land d) Public access to be located above mean high water mark e) The reinforcing of the foreshore character and respect for existing environmental conditions. 21 The LEP 2008 also has a foreshore building line and for the subject site seen at between 23 and 25 metres. The building height means "the vertical distance between ground level (existing) at any point to the highest point of the building, including plant and lift overruns, but excluding… chimneys and the like. 22 Battersea Park is a local heritage item under the LEP and the Statement of Significance of the inventory states: The terracing and steps cut into the rock faces on the south east side of Battersea Park are important evidence of the former Abbotsford Baths constructed on this site. This evidence demonstrates the emphasis placed on leisure actives early in the century and the affluence of the area at the time. It is one of few legible sites and public baths in existence around the harbour. The sea walls around the edge of Battersea Park are believed to be part of work undertaken by unemployed workers in the great depression. Battersea Park is notable also for its remanent indigenous vegetation (trees) particularly one large Black Butt 20 metres and five old Cheese Trees possible 60 years old. Battersea Park is the site of the Abbotsford Baths and Ocean Swimming Pool built in 1910, the baths were eventually filled in by Council due to concerns about water pollution and insurance costs. 23 The relevant development control plan is the Drummoyne Area Comprehensive Development Control Plan 1986 and this contains a number of general objectives as follows: General Objectives The objectives of the DCP for residential development are to: 1. Encourage a mix of housing styles and types that complement Drummoyne's different urban characters; 2. Accommodate demand for additional housing in a way that reflects the character of Drummoyne; 3. Promote housing that incorporates the principles of ecologically sustainable development; 4. Encourage innovation in housing design; 5. Minimise negative impacts of development on the amenity of adjoining properties; 6. Conserve the natural built and cultural significance of identified heritage items and conservation areas; and 7. Retain and enhance vegetation and significant trees to maintain the leafy character of Drummoyne. 24 The desired future character objectives for the Peninsular Areas include: 1. Ensure privacy and solar access of existing developments are maintained; 2. Ensure development incorporates transitional elements such as landscaping, awnings and front fences to create a more human scale; 3. Ensure trees lost through redevelopment are replaced; 4. Maintain views in the private and public domain; 5. Ensure heritage items and conservation areas are not compromised; and 6. Enhance public access to foreshore areas. 25 Section 6.5 provides building envelopes and the general objectives are relevantly: o To maintain a compatible scale with surrounding development; and o To limit building footprints to ensure sufficient opportunities for substantial landscaping in deep soil 26 The performance criteria for building envelopes for dwellings and attached dual occupancies relevantly are: Boarding, siting should ensure views, amenity, privacy and solar access of existing developments are maintained. 27 The maximum floor space ratio is 0.5:1 and the maximum height is two storeys. Side boundary setbacks are a minimum of 900 mm for single storeys and 1.5 metres for two storeys. 28 Building design objectives are set out at 6.6. 1. To promote housing forms of a scale and appearance in keeping with the street and neighbourhood character. 2. To ensure variety within development, where consistent with the neighbourhood character. 3. To encourage the sharing of views whilst not restricting the reasonable development potential of a site. 4. To ensure building bulk and scale maintains neighbour privacy and amenity. 5. To ensure separation between buildings. Performance Criteria. 1. Building bulk shall be distributed to reduce overshadowing of neighbours, streets and public open space. 2. Building forms and scale should allow views to be shared with neighbours and maintain established tree and vegetation networks. 3. New development should incorporate articulated facades to avoid a bulky appearance. The use of elements such as pergolas, verandahs, balconies and voids is encouraged. 7. The roof of the building should be well designed so that it does not unduly increase the bulk of the building. 29 Section 6.7 of the DCP is about views: Explanation Views are a desirable aspect of amenity that contributes to a person's sense of well being and enjoyment. Views in Drummoyne include city skyline and water views of the Parramatta River and foreshores. The significance of a view is a subjective issue. View sharing seeks to maximise the number of residents who can benefit from a view. It is important to maintain cross views through building design and the location of building bulk. Sensitive new building design and siting can ensure the reasonable sharing and maintenance of views. Objectives 1. To protect and enhance opportunities for vistas and public views from streets and public places. 2. To ensure views to and from the site are considered at the site analysis stage. 3. To recognise the value of views from private dwellings and encourage view sharing through building design and location and landscape design. 4. To recognise the value of view sharing whilst not restricting the reasonable development potential of the site. 5. To encourage building form and design that allows for reasonable view sharing appropriate to context. 30 The Canada Bay DCP relevantly contains the following guidelines: 5.1.6 Design of Attached Dual Occupancies Well designed attached dual occupancies can blend unobtrusively with existing building patterns and streetscape so as to maintain and strengthen the character of a neighbourhood. Objective O1 Ensure that the design of attached dual occupancies complements and enhances the character and streetscape of their locality and protects the amenity of neighbouring properties. Controls C1 Attached dual occupancies and in particular duplex style development, should be designed to have the appearance of an ordinary, single occupancy dwelling house when viewed from the street or a public place. Note: Applications for mirror-imaged dual occupancy development, incorporating protruding garages facing the street do NOT satisfy the objectives of this DCP and are not permitted. C2 Each dwelling within an attached dual occupancy development should either be side by side or one dwelling above the other. It is not acceptable to have one dwelling behind the other. C3 One dual occupancy should not extend into the rear yard further than 5 metres beyond the other, C4 Attached dual occupancies should reflect the building form and roof lines of adjoining dwellings, where a pattern is established by a group of adjoining houses. Driveways and access ways for attached dual occupancies C5 No more than one third of the width of the frontage of a property should be used for driveways and access ways. C6 The provision of access to garages and additional parking spaces for dual occupancy dwellings should minimise paved surfaces to the front of the building. C7 Garages for each dwelling within an attached dual occupancy should be single car width only. C8 Where all existing dwellings are located to the left or right side of their respective allotment and have a side driveway, this pattern should also be observed by the design of the attached dual occupancy. C9 Attached dual occupancies should not have central garages or driveways (examples of these are shown under unacceptable designs). 5.2.2 Harbour Foreshore Development & Foreshore Access The foreshore building line, fixed by Council, is shown on a plan that is available for inspection by the public at the Canada Bay Civic Centre, Drummoyne during normal office hours. In accordance with the objectives of the Canada Bay LEP, the purpose of the foreshore building line is to ensure that buildings are set back from the foreshore, to retain and extend public access to foreshore areas and to control development on the foreshore. Wherever possible, public access to and along the foreshore should be provided or improved. In this regard, a primary objective of Council is to optimise public foreshore access through the provision of a continuous, accessible foreshore. Objectives 01 To ensure development along the foreshore is consistent with relevant state and regional planning policies and guidelines. 02 To recognise, protect and enhance the natural, scenic, environmental, cultural and heritage qualities of the foreshore of the City of Canada Bay. 03 To ensure the Parramatta River foreshore is developed and promoted as a community asset in public ownership or with unrestricted public access. Controls C1 Building forms should follow the natural topography and maintain and enhance vegetation cover as viewed from the Parramatta River. For example, buildings are not to be cantilevered. C2 Roof lines should be below the tree canopy backdrop to maintain the importance of any treeline. C3 Buildings should be designed and constructed to present a recessive appearance when viewed from the Parramatta River through the use of materials, colours, wall articulation, building form and landscaping. Glass elevations and excessive use of windows resulting in reflectivity and glare will not be permitted. C4 Pergolas, boatsheds and other out-building and structures are to be designed and constructed to complement the overall appearance of the development. Such structures are to be no more than one storey in height. C5 Swimming pools and spa pools constructed within the foreshore setback are to have no more than 300mm of the pool wall visible above existing ground level. C6 Swimming pool and spa pool walls are to be suitably treated to complement the natural foreshore and where visible, are to be sandstone and to incorporate suitable screen landscaping. C7 Boundary fences are not permitted within 8.0 metres of the mean high water mark. C8 Individual retaining walls are to have a maximum height of 500 mm. C9 Hard surfaces and artificial surfaces, such as paving, are to be minimised within the Foreshore Building Line Area and limited to swimming pool surrounds or modest walkways between the residential building and foreshore structures such as swimming pools or boat ramps. C10 Mature trees or significant landscaping are not be removed to locate foreshore structures. C11 Any development on the foreshore should: (a) Enhance the existing flora of the allotment; (b) Where appropriate, include native trees which will be 12 metres or greater at maturity; and (c) Avoid introduced species known to seed freely or spread easily. Protection of the natural foreshore C12 Development on foreshore properties does not significantly alter the topography and preserves natural foreshore features including cliffs, rock outcrops, rock shelfs and beaches. C13 Seawalls or retaining walls are not permitted in areas where the foreshore is in its natural state. C14 Where seawalls or retaining walls are permitted, they are constructed of coarse, rock-faced stone or with stone facing (preferably sandstone) and do not protrude more than I.0m above the mean high water mark. C15 Slipways and stairs are to be designed and constructed to closely conform with the character of the natural foreshore. Foreshore Access C16 Public access along the foreshore should be provided by means of (as a minimum) a 3 metre strip of land between mean high water mark and the development. The access may be secured by means of a registered covenant, agreement or instrument in favour of the Council (as provided for in the Conveyancing Act 1919) that burdens the relevant land, or by means of an obligation contained in a planning agreement that is entered into between the relevant landowner, the Council, or both. Please refer to the Canada Bay LEP for considerations in relation to the provision of foreshore access. C17 Public access to the foreshore via through site links is not to be obstructed by the location of foreshore structures. 5.2.5 Access to Views Views are a desirable aspect that contribute to the amenity of property and the public domain. Views in Canada Bay include the city skyline and water views of the Parramatta River and its foreshore. New development needs to be designed so that it is sensitive to existing view corridors and minimises impact on views "View sharing" considers the equitable distribution of views between properties. The view sharing control seeks to strike a balance between facilitating new development, while preserving, as far as practical, access to views from surrounding properties. The four step view assessment process applied in this DCP is based on the Planning Principle outlined in NSW Land & Environment Court judgment 140 of 7 April 2004. Objectives 01 To protect and enhance opportunities for vistas and public views from streets and public places. 02 To ensure views to and from the site are considered at the site analysis stage. 03 To recognise the value of views from private dwellings and encourage view sharing through building design, location and landscape design 04 To recognise the value of view sharing whilst not restricting the reasonable development potential of the site. 05 To encourage building form and design that allows for reasonable view sharing appropriate to context Controls To determine whether a development is satisfactory in relation to the objectives pertaining to access to views, the following controls will be applied C 1 Development should seek to protect water views, iconic Views, and whole views Views to be affected Water views are valued more highly than land views. Iconic views (eg of the Harbour Bridge or the City skyline) 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 the land and water is visible is more valuable than one in which it is obscured). An icon should be a prominent identifying feature of the landscape and should be commonly held by the wider community as having iconic status C2 Development should seek to protect views from the front and rear of buildings and where views are obtained from a standing position From what part of the property are the views obtained. The expectation to retain side views and sitting views is often unrealistic C3 Development should seek to protect views from living areas and minimise the extent of impact. 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 the Harbour Bridge. Council will attempt to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. C4 Development in view affected areas should not only be designed to meet relevant development controls but also be designed to achieve view sharing. Reasonableness of the proposal that is causing the impact. A development that complies with all planning controls is 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 is unreasonable A complying proposal of a skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. Note In some cases, Council will insist on the erection of height poles/building templates to indicate the height of the proposed development together with written and/or photographic montages to ensure that view losses are minimal. Template construction is to be to the satisfaction of Council officers and is to be certified by a registered surveyor upon erection Evidence and submissions 31 The Court met on site at the beginning of the s 34 Conciliation Conference and further attended the site on the morning of the Court hearing. The Court heard from a number of resident objectors and their concerns relate to the impact of the proposed development on their views and the appearance of the dual occupancy when viewed from the waterway. 32 The owners of the property at the rear known as No. 4 Checkley Street are concerned about the view loss from their proposed dwelling. In their opinion the view from their living areas on the ground floor will be totally destroyed by the development and the view from the first floor particularly the conservatory will also be significantly affected due to the depth of the building and the large expanse of metal roof. They also told the Court that the full width coverage of the site by two dual occupancies also has a significant impact as there are no view corridors. They also express concern that their backyard would be completely boxed in by the high walls surrounding it. They are of the view that the excessive ceiling heights averaging 3 metres is excessive. They said that their view loss is a direct result of non-compliance with Council's controls and therefore unacceptable. They further expressed the view that without a significant drop in height by at least a metre and the removal of the third floor bedrooms the views from their living areas would be destroyed. 33 The owner of No. 2 Checkley Street where the building is currently nearing completion also expressed concern about the height of the proposal and the impact on his views. 34 The owners of No. 6 also gave evidence to the Court and expressed concern about the privacy and overshadowing impact of the proposal on their waterfront open space area and their views. They also expressed concern about the height and bulk of the building when viewed from the foreshore and the fact that the building extended much further down the allotment than the built forms on adjoining properties with a minimum setback to their property with a height of some 10 metres. 35 The Court also heard expert evidence from the parties town planners. Mr Kim Burrell gave evidence on behalf of the applicant and Mr Brian Krohn gave evidence on behalf of the respondent council. Council's landscape architect also provided advise to the Court as did Council' heritage advisor. The applicants architect Mr J. Long also provided evidence to the Court. 36 The assessment report for No. 2 Checkley Street was provided to the Court. The approval is for a three storey dwelling with basement parking and swimming pool and determined it was on July 2006. This approval allows for a three storey development when viewed from Hunter Street. The entry from Checkley Street is several steps above the level of the street at RL 14480 and ground is at 13780. The garages are accessed from Hunter Street and the garage door opening is at a point that makes the dwelling approximately three storeys at this point. The swimming pool is at RL 12480 and from the side elevation to No. 4 Checkley Street the the rear yard with pool and the dwelling is significantly elevated from the natural ground level. High boundary walls present to No. 4. The overall fall of the site is some 3 metres from front to rear. The conclusion in the council's assessment report for No. 2 is that the development performs adequately in terms of its relationship to it surrounding built and natural environment, particularly in relation to likely impacts upon surrounding properties. 37 The property at No. 4 Checkley Street was approved in September 2007. This is also for a three storey dwelling house although from Checkley Street it appears as two storey with three garages directly facing Checkley Street. The site is 550 square metres with a 4 metre difference in the front to the rear of the site in topography. The floor space ratio of the proposal is 0.87:1. 38 The buildings on each lot are three storeys when viewed from the water and single storey to two storeys at the rear with vehicle access d from the right of way off Hunter St. The buildings are set behind the foreshore building line of between 25 m on the eastern boundary to 23 m on the western boundary. Swimming pools, terraces adjoining the building and landscaping is also proposed for each dual occupancy forward of the foreshore building line, with the face of the buildings setback behind the foreshore building line. 39 At the ground level of each unit are a lounge kitchen and dining room and laundry straw and powder room. The first-floor level of each unit has bedrooms 2 and 3 plus a study, store room and bathroom and a balcony facing the water. The second floor level comprises the main bedroom with ensuite and balcony to the water a double garage and entry lift lobby and stairs 40 The set back from the foreshore between the two buildings is 1.5 m on each lot providing a 3 m setback between the buildings. From the foreshore the setback to No.6 is 1 at ground and 1.5 m for the first and second levels 41 By way of background the development application originally submitted to the council was for a significantly larger development. During the course of these proceedings amended plans were submitted and these are the subject of my determination. 42 For the contention of view loss and view sharing I have carefully assessed the proposed development having regard to the relative levels of the proposed dwelling at number 4 Checkley St and those of the subject proposal. In this regard I note that the sight lines prepared by the respondent at Exhibit 13 show the living area RL. at 12.78, however the approved plans for number 4 show this to be need RL. of the conservatory and the RL. for the family room are 13.68. The natural ground level for the upper portion of the site subject site has a contour of 9m, and for No.4 the contours of 9.5, 10 and 10.5 apply. 43 I accept the evidence of the experts that a two-storey structure erected on the southern part of the site would have a much greater impact on views than the proposed single storey garage with an RL. of 12.43. The 8.5 m height control contained in the 2008 LEP was drawn on the same exhibit and this demonstrates that the view from the dwelling, even the third storey of no 4 Checkley St would be obliterated and devastating. I note that the RL of the upper bedroom level of number 4 is at RL 16.68 and from the Exhibit 13 this demonstrates that a person standing in the master bedroom from a standing position would largely see over the top of the proposed buildings with just a small portion of the water obstructed. 44 In my assessment it is clear that the land water interface of the cliff and vegetation of the subject site could not be retained. 45 I have had regard to the principles articulated in Tenacity Consulting and Warringah Council. In asking the relevant questions, to begin with the view of water closer to the shore could not be regarded as iconic and the more middle field view to the Marina and the foreshore on the opposite side to the north are the more significant elements in the view. I note that in Tenacity taking a view completely away could not be called a view sharing but in some circumstances it might be quite reasonable. 46 The second step is to consider what part of the property the views are obtained that is across the rear boundary and it is noted that sitting views are more difficult to protect and standing views the latter being often unrealistic to achieve. 47 The third step is to assess the extent of the impact and this should be done for the whole of the property not just for the view that is affected. The impact on views from living area is more significant than from bedrooms or service areas. View loss is described qualitatively as 'negligible minor moderate severe or devastating'. 48 The fourth step is to assess the reasonableness of the proposal causing the impact on views that arises as a result of non-compliance. Even a moderate impact may be considered unreasonable and the question should be asked whether a more skilful design reduce the impact and if the answer to that question is no, then the view impact of complying development would probably be considered acceptable and the view sharing reasonable. 49 Applying the above steps to this case it is clear in my assessment that a complying proposal of two storeys at the rear of the subject site would be devastating. I am also satisfied that there is not an alternative more skilful design solution and that the applicants through previous amendments and a further amendment to reduce the nib by 300 mm satisfies the questions and steps required in Tenacity. I am also satisfied that it would be unrealistic to retain the view from the middle living area from a sitting position and when standing the extent of the loss of view is not unreasonable. 50 While views from bedrooms are generally seen to be less important at the same time they are relevant in my overall assessment. I am satisfied that the views from the upper living area will only suffer a negligible impact. 51 While I appreciate the desire of the owners of number 4 to maintain the views from their new dwelling at the same time a thorough analysis has led me to the conclusion that it is an unrealistic expectation that uninterrupted views could be obtained from even the middle level of the dwelling that is the family room living area having regard to the natural ground level at the rear of numbers 2A and 4A relative to the floor level of No.4. 52 While the proposed development will impact on the views for number 4 the impacts are less than what a complying two-storey or 8.5 m building at the rear of the site.. Nonetheless, a further effort by the applicant to reduce the view loss can be pursued by a deletion of the nib of the northern wall northern of the garage and a lowering of the dwellings by some 350 mm will have the benefit of a slight improvement in views from the middle and upper levels of number 4. 53 I do not accept Mr Krohn's evidence that it is possible to construct a driveway that meanders down the site given the changes in level, the dimensions of the sites and the impractical nature of a driveway consuming such a large portion of the site. I do not accept the respondent submission that a double garage for each dual occupancy is excessive, and that the minimum of one should be provided. Council has not imposed the minimum as a restriction on recent approvals. Garages in a location proposed is the logical solution in this regard I agree with the applicants evidence. 54 The minimum floor to ceiling height in the garage of 2.2 m is proposed to minimise view loss from number 4. 55 At the end of the proceedings it was conceded by the respondent that view loss from any other properties including no 2 Checkley St and no 48 Fitzroy St would not warrant refusal of the application. And indeed in my assessment the view loss from these properties is negligible. 56 Based on the evidence to the Court I accept the submission made on behalf of the applicant that the proposed development does not result in unreasonable view loss. It was agreed between the experts that a two-storey structure at the rear of the subject sites would have a far greater impact on the view loss than the proposed a single storey garage. It is inevitable that a one storey building above natural ground level or the level of a driveway to provide access to the lots would impact on the view is currently in jewel wheat in particular from no 4. The northern wall of the garage is the leading edge that generates the view impact and the proposal is not excessive with a length for the garages of 6m only. 57 I am satisfied that when the development application is assessed against the principles of Tenacity that the impact on views is not unreasonable. I agree with the experts that the difference in view impact of a complying development of two storeys is marginal. It is appropriate that with the reduction of the nib wall of the garages that there be a commensurate reduction in the height of the dual occupancy buildings as viewed from the foreshore. The architect gave evidence that it could be lowered by some 350 mm. This will have the dual advantage of reducing the height as it appears from the water and no. 6 as well as achieving a slightly improved expanse of the near water when viewed from the upper levels of no. 4. 58 With respect to the set back to no. 6 given the three-storey presentation of the building along this boundary it is appropriate that the setback be increased to 1.5 for the ground floor and 2 m for the upper levels. This provides the opportunity for landscaping, albeit limited, along this boundary. I am satisfied that the increased setbacks can be readily accommodated in a revised set of drawings having regard to the size of the rooms. The result means the affected rooms would be as large as or larger than for dwellings two and three. 59 On the matter of overlooking and privacy to the foreshore private open space of no.6 this would not warrant refusal of the application. It is generally accepted that there is mutual overlooking where properties have expansive views over the water and the generous setbacks to provide for an expansive area of open space between buildings and the foreshore. Overlooking from the terraces balconies off bedrooms is not considered to impose the same privacy concerns as terraces adjoining living areas. 60 The second contention is the appearance from the waterway and the impact on the foreshore and park. In this regard the respondent refers to the desired future character for 'peninsula areas' and the 1986 DCP. The proposal is set back between 23 and 25 m from the foreshore to the face of the walls of the buildings and I am satisfied with the slight reduction in height and the increased western setback to number six required above, removal of aboveground facilities and structures (pergolas and toilets) that the presentation of a three-storey building will not be out of character with the area and that the development will sit in a landscaped setting with a most generous set back. 61 During the course of the proceedings amended landscape plans have also been forthcoming and the council raises no objection to the landscaping in terms of species provided and the percentage of build upon area and soft landscaping with canopy trees. It is also now proposed that the two lemon scented gums and the ficus hillii adjoining at Battersea Park are to be retained in the proposed development. 62 The floorspace ratio of the proposal would not warrant refusal of the application. The development has been significantly reduced in this regard from the original development application submitted to the council. The respective FSR's for the dwellings range between about 0.55 to 0.65:1. I am satisfied that a three-storey buildings and the FSR are not inconsistent with the future desired character of the area having regard to the individual merits of this application including the large percentage of unbuilt upon area and the clear and generous setback from the foreshore. In my assessment I rely on the objectives of the SREP, LEP, and DCP being satisfied as opposed to recent approvals by the council for three-storey buildings with increased FSR's. 63 In my assessment the proposed development will not impact on the heritage significance of Battersea Park or for that matter the enjoyment of the park. The built form will not be imposing on this zone interface and it would not be unexpected to see residential development from the park. Furthermore, the retention of the gum trees and ficus will allow for filtered views of the building from the park. I do not accept the evidence of Mr Krohn that the proposal will have unreasonable overshadowing and a visual impact on the park, and Council's heritage adviser considers the proposal will not impact on the heritage significance of the park. As with all development when viewed from the public domain it must be carefully assessed and the amended plans before the court with the requirement for the retention of the three trees provides an appropriate relationship with the park. 64 I am also satisfied that when viewed from the waterway the proposal will read as two distinct building elements each will be about 12m in width on the northern elevation. The setbacks with canopy trees provide an appropriate setting for the proposed three-storey building and it will not read as an overdevelopment of the land. The 3 m setback between the buildings will be visible from the water and I am satisfied that the design, materials and finishes and landscaping provide an appropriate presentation to the waterway. 65 On the contention of public foreshore access and the objectives of the 1986 and 2008 LEP and DCP I accept Mr Pickles submission that the only power to require dedication arises through section 94 and that there is no nexus between the development and the need to provide pedestrian access to the foreshore, or in other words the foreshore access requirement does not arise from this development. From a strategic planning point of view, increased and improved foreshore access is a most commendable objective, however these objectives should be translated into an appropriate zoning and section 94 plans to provide transparency and certainty in the planning process. 66 On a merits assessment I am also satisfied that the proposed development would not prevent the council in the future identifying and zoning a 3 m wide access strip of land between the mean high water mark the retaining wall and the development. No structures are shown in the plans in the strip of land adjoining the foreshore and I am satisfied that approval of the proposed development is not an impediment to future foreshore access and would not circumvent future zoning and or acquisition of the foreshore strip. 67 The relevant instruments and DCP guidelines note a number of ways in which linkages can be achieved and this includes connections via streets. This currently exists as Battersea Park and the Quarantine Station Park are connected by way of Hunter and Checkley Streets. I am persuaded that providing public access in front of the subject property would achieve the stated objectives at this point in time given the number of private properties to the west. 68 In my overall merits assessment of the development application I am satisfied the proposed development is appropriate for the site and that the impacts on adjoining properties are not unreasonable having regard to the circumstances of the case and the planning controls and guidelines under which I must assess the development application. 69 On a holistic reading of the instruments and guidelines, that I have made central and a focus of my assessment, the proposal generally meets the objectives. The numeric non-compliance is of the FSR and height and storeys are justified in the circumstances. In the context of the surrounding area, the topography and the waterfront location the proposal will sit comfortably on the site. As can be seen from the photo montages at figures 2 and 3, even though these were prepared for the original development that was significantly larger with reduced setbacks and with structures forward of the foreshore building line, it can be seen that the development is well below the ridge and other built forms in the area. 70 In my assessment the proposal now before the Court is sympathetic to its surroundings and has appropriate landscaping and setbacks and could be contemplated by the current 2008 LEP zone of R3 "to provide a variety of housing types within a medium density residential environment" and can co-exist harmoniously in its context. 71 Accordingly on the basis of my assessment above the development application for two attached dual occupancy buildings on the subject lots 7 and 8 should be approved subject to a deferred commencement to require amended plans and a longitudinal section for the driveway to ensure the RL for the garage structure can be achieved. The amended architectural plans are to show a reduction in the height of the foreshore buildings by 350 mm, the deletion of the nib wall on the northern wall of the garage. I am satisfied the deferred commencement conditions if satisfied provide certainty as to the development to be carried out. ___________________ J S Murrell Commissioner of the Court ajl/ljr Annexures Figure 1 – subdivision of land Figure 2 – original proposal submitted to Council from waterway when viewed from west Figure 3 – original proposal submitted to Council from waterway when viewed from east Figure 4 – SREP to show landscape character Figure 5 – Sight lines from No. 4 Checkley Street to proposal. 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.