Land and Environment Court of New South Wales CITATION : Currency Corporation Pty Limited v Wyong Shire Council [2007] NSWLEC 634 APPLICANT Currency Corporation Pty Limited PARTIES : RESPONDENT Wyong Shire Council FILE NUMBER(S) : 11494 of 2005 CORAM: Hoffman C KEY ISSUES: Appeal :- redevelopment of residential units, Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Environmental Planning and Assessment Act Regulations 2000 Wyong Local Environmental Plan 1991 CASES CITED: Tenacity V Warringah [2004]NSWLEC140 DATES OF HEARING: 26/2/2007, 06/03/2007, 27/03/2007, 25/07/2007, 26/07/2007 and 27/07/2007 DATE OF JUDGMENT: 28 September 2007 APPLICANT Mr Craig, QC and Mr Eastmen, solicitor Instructed by Grech Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr C. Leggatt, SC Instructed by Mr P. Brown, solicitor of Abbott Tout Solicitors JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 28 September 2007 11494 of 2005 Currency Corporation Pty Limited v Wyong Shire Council JUDGMENT 1 This is a Class 1 Appeal No. 11494 of 2005 between Currency Corporation and Wyong Shire Council in regard to the refusal of redevelopment of flats on No.50 Werrina Parade, Blue Bay, The Entrance. 2 There had been different schemes put forward by the applicant, and following a Preliminary Decision by Biscoe J and Directions Hearings by Preston CJ and Jagot J, a final scheme was prepared and renotified for public comment. It did not involve use of the adjoining property for vehicular access as had previous schemes. Description of the Subject Land and Locality: 3 The subject site is located in Blue Bay, a coastal suburb to the south of The Entrance on the Central Coast. Werrina Parade follows the coastline and provides access to approximately 73 houses. As the subject land is located on the eastern side of Werrina Parade it is a beach front property situated with one end on the frontal dune and the other end rising up the hillside to the Parade. The land falls away from Werrina Parade toward the east, with an overall fall of approximately 12.0m down to the beach. 4 The site currently supports an older style two storey split level residential flat building comprising seven small flats, known as "Roseleigh". It appears to have been subject to various alterations and was for a time used for tourist accommodation. The site currently appears to be unoccupied, although the building has been previously utilised as a residential flat building for a number of separate occupancies. The building is located at the top of the site with the balance being vacant except for a concrete terrace about half way down to the beach, and a stairway across the dune to the sand. 5 The surrounding land use is residential with varied historical subdivision patterns containing single dwellings and some dual occupancies.. The site represents a non-conforming existing use. The approximate density of the adjoining properties is 0.4:1. 6 The FSR of the proposal is 0.77:1, representing an increased density of 500m2 built area on the site in comparison to the existing building. The adjoining development is generally 2-storey. 7 The typical development pattern consists of two rows of buildings on battle-axe lots, one house up at the Parade and the other down near the beach with an open space/ landscaped break between. This is partly the result of the historical subdivision pattern in the vicinity. The subject site is one of the few remaining original lots, and extends from the street down to the beach. The Proposal 8 The development proposed is a residential flat building development of six units comprising 1 x 4 bed unit, 4 x 3 bed units and 1 x 2 bed unit in a split level design. The application also includes the construction of a semi-basement car park for 10 vehicles built into the hillside on the 3rd floor. Demolition of the existing structures is proposed and new sewer connection works. 9 The building is a single structure that is said, in one place, to be three storeys, but mostly 2-storeys with a maximum elevation of RL 25.4 to the top of its flat roof. 10 Number 48 Werrina Parade to the north has recently been rebuilt with a detached house that is single storey to the street, but the high hipped roof conceals an attic master bedroom facing the ocean. On the eastern façade it is 3-storey above high foundations due to the slope of the land. The peak of its hipped roof is perhaps a metre above the flat roof of the proposal. 11 The proposal's roof is about 2 m lower than the existing flats on the subject site. 12 No. 52A to the south of the property at the road-front has a ridge height of RL 26.5. It has a high curved "wave" form roof as does its beachfront neighbour at No.52. The latter is at a much lower level and is reached by the axe-handle driveway adjoining the subject site to a paved car-courtyard between Nos.52 and 52A. 13 The side boundary setback proposed is 1.5m on both the north and the south boundaries, except for some indentations for entry doors or window bays. Overhanging hoods and planter boxes come to within 0.6m of the side boundary. 14 The proposal will cascade through 5 levels down the hill as a single structure from the road frontage to the beach frontage. There is no break between beach-front and road-front structures compared to the adjoining and nearby battle-axe properties. However there is a shared large common terrace 30m long on the beach-front end of the 3rd floor. 15 On the 4th and 5th floors the units have very large terraces facing the ocean varying between 6m and 17m long. These terraces' lengths vary due to a distinct splayed façade at the 4th and 5th levels that is designed to preserve views to the north from the street-front house at No.52A Werrina Parade. The stepped commencement points of the terraces on the northern façade are designed to retain some views to the south for the street-front house at No.48 Werrina Parade. 16 The FSR of the existing building is 0.38:1, the expansion proposed has an FSR of 0.77:1. Importantly the site coverage has increased from 20% to 57% of the site. 17 The street-front setback matches its neighbours at about 6m. Most of the front setback is occupied by a double width entry drive and courtyard walls up to the street front for a residents courtyard entry, and another for one of the ground floor street-front units. During the view it was noticeable properties either side of the site and nearby had high street boundary fences and large gates. 18 At the eastern end adjacent the beach the 2-storey façade of the ground and first floor units is setback 18m from the beach boundary such that it is about 1m behind the statutory beach front erosion hazard line. There is a balcony at the upper level that cantilevers about 1.5m in front of the hazard line. The 3rd floor common terrace on the roof of the 2nd storey comes forward to a glass balustrade at the front of the eaves above the 2nd storey windows. 19 No. 52 on the south side of the proposal has its façade about 1m in front of the hazard line with a balcony at the upper level that cantilevers about 4m in front. No.48A the neighbour on the north side is an older house that is built about 6m in front of the coastal hazard line. 20 The beachfront boundary of all the lots nearby is splayed at about a 45 degree angle to the east-west side boundaries. As a result the subject proposal and No. 52 have splayed eastern facades. Statutory Requirements: 21 Section 108 (3) of the Environmental Planning and Assessment Act, 1979 states: An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection would derogate or have the effect of derogating from the incorporated provision have no force or effect while the incorporated provisions remain in force. 22 The site enjoys existing use rights. The consequence of preserving existing use rights is that planning controls that limit the size of the proposal (i.e. height and setback) have no application. However the merits of the proposal when compared to the surrounding area where the controls apply is relevant to the assessment. Wyong Local Environmental Plan 1991 23 The subject development is defined as a residential flat building as it contains three or more dwellings. Pursuant to Clause 10 of the Wyong LEP 'residential flat development' is a prohibited use within the 2(a) Residential zone cl. 40 of the Environmental Planning and Assessment Act Regulations, 2000 state that an existing use: "may, subject to the provisions of the regulations and the granting of development consent: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, including a use that would otherwise be prohibited under the Act". 24 A previous decision of the Court has confirmed that the site benefits from the existing use provision of the Environmental Planning and Assessment Act, 1979. Objective of the 2(a) Residential zone 25 The objectives are: (a) to provide land primarily for detached housing generally not exceeding a height of 2 storeys and with private gardens in an environment free from commercial and other incompatible activities and buildings, and (b) To provide for other uses, only where they: (i) are compatible with the residential environment and afford services to residents at a local level, and (ii) are unlikely to adversely affect residential amenity or place demands on services beyond the level reasonably required for detached housing. The Issues 26 The Respondent raises the following issues in relation to the appeal: 1. Inconsistency with the 2(a) zone objectives The proposal is inconsistent with the objectives of the 2(a) zone to the extent that the objectives are relevant when determining the likely future context of surrounding development. The proposal is incompatible with surrounding development in the locality, which is primarily of 2 storeys, having regard to, among other things, the proposal's bulk and scale and the lack of significant natural landscaping at grade which arises as a consequence of the proposal's excessive site coverage (see the Fodor principles). The development has both significant visual and physical impacts on the adjoining development and public domain. 2. Bulk Scale Density and visual impact (a) The bulk and scale of is incompatible with surrounding development, particularly when viewed from adjoining properties and the beachfront. (b) The proposal's site coverage is excessive, covering almost the entire site, with insufficient setbacks from adjoining properties and is out of character with the surrounding development. (c) The proposal does not take into account the building pattern of surrounding development. For example, the surrounding development provides for a landscaped open space corridor between beach front and street front buildings, which is not addressed by the proposal, resulting in a lack of landscaped open space. The development as proposed does not activate the street by allowing for the primary pedestrian entry to meet the primary street frontage, in fact the only opening detailed in the front facade is for the garbage enclosure. (d) The proposal's height as it cascades down the site is excessive, and out of character with surrounding development. (e) The extensive unbroken walls will result in adverse visual impact upon surrounding development and the beachfront. This is exacerbated by their height and the small setbacks provided to the boundary. (f) For reasons particularised in this statement of issues, the proposal represents an overdevelopment of the site. (g) The proposed development will have a floor space ratio, and building depth far greater than that of the existing building (see the second Fodor principle ie. there is no automatic entitlement to a new building with the same FSR, let alone a vast increase in the FSR resulting in adverse impacts on adjoining development). 3. Tree Loss and Landscaping (a) The proposal will result in the removal of a Broad Leafed Paperbark, which is listed as a keystone species under Wyong Shire Council Development Control Plan No 14. (b) The proposal will also result in the removal of a Cook Pine which is considered to be significant and contribute to the sense of place of the locality. The Cook Pine has a link to the historic use of the site and the surrounding place. Whilst replacement plants are identified, the current proposal does not allow sufficient site area for such a specimen to reach maturity in the vicinity of the vegetated corridor. (c) As a result of the excessive site coverage and limited setbacks the proposal, in addition to eliminating/disrupting the existing landscape corridor and removing two significant trees, provides limited spaces for deep soil planting, and thus reducing the ability of the proposal's adverse visual impacts to be mitigated by landscaping. 4. Communal Open Space The proposal provides for inadequate communal open space. In this regard, the roof top terrace is considered inappropriate having regard to surrounding development and the locality's likely future character and it is thus considered that communal open space should be provided at ground level. Such an outcome could be achieved by a less dense proposal that reflected the existing pattern of development. 5. Issue 5 was deleted. 6. Safety The proposed pedestrian entry is not discernible from the public street. A well design entry to the building would create a positive contribution to the street. The ground floor units could be designed to have separate private entries. Consideration of the treatment of the entry would create interest in the front facade. The current design provides opportunities for concealment and the design has no living areas providing passive surveillance to this alley. This is inconsistent with the principles of Safer by Design. 7. Privacy, Amenity and Noise (a) The excessive site coverage and limited setbacks result in the proposal unreasonably impacting upon the privacy and amenity of Nos 52 and 48 Werrina Parade (particularly with respect to the proposed open space of units 1 and 3). The proposal will substantially reduce the enjoyment of No 52's primary private open space. It is also noted that no treatment of the large windows in some of the bedrooms and bathrooms is proposed. (b) The roof deck communal open space will create acoustic, privacy and amenity issues for the adjoining properties given its size, location, elevation and proximity to the adjoining properties. (c) The majority of actions proposed to achieve privacy and separation rely on successful landscaping of which no details have been provided. No amended landscape plan has been lodged with the amended architectural design. (d) Whether the development should provide a disabled car space. (e) The impacts of the location of the basement exhaust vents .within the proximity of the adjoining property bedrooms from both fumes and noise. 8. Internal amenity (a) The internal amenity and layout of the apartments in the development is compromised by the following issues: (b) Lack of presentation to the street and lack of identity of the individual units; (c) The use of acute angles in the design leads to an inefficient use of internal and external spaces; (d) Entry to some of the apartments is on a separate level to the living areas, leading to a poor sense of entry, security and surveillance; (e) Garbage areas are located in close proximity to the private open space and bedrooms of the apartments; (f) Adaptable housing has not been provided, questionable disabled access; (g) Room sizes don't comply with the Residential Flat Design Code; (h) The laundry of Unit 1 fronts directly onto the living area; and (i) Several of the Terraces are narrow and are of limited useability. 9. Overshadowing The proposal will result in unreasonable overshadowing impacts upon No 52 Werrina Parade. 10. View Loss (a) The proposal will result in unreasonable view loss impacts upon Nos 48 and 52 Werrina Parade which principally arises as a result of the expansion of the existing use beyond that of the existing building. (b) The development plans do not detail any shade structures, likely to be added in the future, over the communal open space that would further impact on the view loss from adjoining properties. 11. Issue 11 was deleted. 12. DCP 2005 Chapter 100 (a) For reasons particularised in this statement of issues, the proposal is inconsistent with the Wyong Shire Council Development Control Plan 2005 Chapter 100 to the extent they are relevant to determining the relationship of the proposed development to existing and likely future context, which includes the following clauses: (i) Clause 3.6 "Building Design": Outcomes Sought, Setbacks, Density, Height, Bulk and Scale, Privacy and Overshadowing, Clause 3.7 "Trees":. Outcomes sought, Threatened Endangered or Keystone Species, Landscaping. 13. DCP 2005 Chapter 77 The development proposed works forward of the erosion line set by the Council. The proposed terrace and stormwater infiltration trench and pipe work and sewerage tank (if the plan showing this is relied upon) are all located within the 'hazard zone' as shown on Plan 1 attached to Chapter 77. Approval of any structures forward of this line exposes them to risk and raises issues of public safety. 14. DCP 2005 Chapter 64 (a) For reasons particularised in this statement of the proposal does not comply with Wyong Shire Council Development Control Plan 2005 Chapter 64 Multiple Dwelling Residential Development to the extent that this DCP is relevant as a guide to assessing the reasonableness of the proposal's impacts. Non compliances include: (i) Clauses 4 (Scale), 4.1, 4.2 (Building Height), 4.3 Site Coverage, 5 (Built Form), 5.1 (construction and appearance of development), 5.1.1 (Building Design) (a), (b), (c), (d), (f), (g), 5.2, 5.3 (Building Lines), 6 (Desnity), 6.1 (Floor Space Ratio), 8 (Landscape), 8.1 (Landscape Design), 8.1.1, 8.1.2, 9 (Amenity), 9.2 (Communal Open Space), 9.2.1, 9.3 (Solar Access), 9.4 (Privacy), 9.4.1, 9.4.2, 9.5 (Views), 12.2 (Streetscape) 15. SEPP 65 Whether the proposal complies with the Design Quality Principles 1, 2, 3, 6, 7 and 10 of SEPP 65 and as also reflected in the Residential Flat Building Design Code for reasons particularised in this statement of issues. It is noted that a small portion of the proposal results in the building being 3 storeys. No SEPP 65 analysis has been provided. 16. SEPP 71 (a) The development is inconsistent with the objective of SEPP 71 [contained in CI 2(1)(e)] of ensuring that the visual amenity of the coast is protected as well as considerations under Clause 8 of SEPP 71, in particular the following matters for consideration: (a), (c), (d), (e), (f), (i), (j) and (n). (b) The development is also does not address the intent or the objectives of the NSW Coastal Policy 1997: A Sustainable Future for the New South Wales Coast. 17. Sewer was deleted. 18. Issues raised by objectors and the public interest. (a) Whether the proposal should be approved having regard to the issues raised by objectors, including amenity impacts on No 52 Werrina Parade, view loss, inconsistency with the 2(a) objectives in terms of bulk and scale, increased site coverage, exceeding the 7 metre hight limit, the unbroken length of wall, overlooking and privacy issues, acoustic privacy, overshadowing, proximity to the coastal hazard line, SEPP 65, visual impact upon the beachfront, streetscape, loss of vegetation and limited landscaping, non compliance with driveway width, inadequate setbacks, compatibility with surrounding development in terms of the 20 metre building depth. (b) For the reasons outlined above the proposal is not in the public interest. 19. Inadequacies and inconsistencies with the Plans and Non-Compliance with Schedule B, insufficient information (a) The plans are inadequate, inconsistent and do not comply with Schedule B. For example: (i) No amended landscape plan has been provided in line with the amended architectural plans. (ii) The site plan does not show the location of windows in relation to the adjoining properties at No 48 and No 52 Werrina Parade. (iii) No disabled carparking spaces have been allocated. (iv) In respect of Floor Plan RL 19.0, whether a garage door is proposed should be made clearer. (v) The southern elevation shows the relationship between Units on the western (street) side of the site to those Units shown on the eastern (beach) side of the site. This relationship is not clearly reflected on the plans however. (vi) The relationship of the natural and proposed ground lines should be shown (indicating specifically where areas are to be cut and filled). (vii) For section 2, it would be useful to show exactly the way in which the retaining walls are proposed to function. (viii) The eastern elevation should indicate the location and relationship of the completed building at 48 Werrina Parade. (ix) The proposed shadows appear to cut neatly around the existing buildings on the southern boundary. It will require clarification as to whether or not in fact the proposed shadows would only shadow those areas shown on this drawing. (x) The same comment applies to drawing A-10. (xi) There are no vertical shadow diagrams of 52 Werrina Parade. (xii) No details have been provided as to the elevation, method of construction and finishes of the terraces proposed forward of the Hazard Line. (xiii) Insufficient information has been provided with respect to the sewerage tank proposed within the coastal erosion zone eg. All that can be assessed is a circle on the plan. The Evidence 27 The respondent's evidence was heard from: + Mr M. C. Johnson, manager of legal and policy at Council. + Mr J. Woodford objector, 48A Werrina Pde. + Mr P. Ede objector, 48 Werrina Pde. + Mr R Currie and Ms J Spring objectors, 52A Werrina Pde. 28 Other objectors had provided written submissions to this revised design of the proposal that were tendered in evidence. 29 The applicant's evidence was heard from : + Mr D. C. Sneddon, consultant town planner + Ms C. C. Slater, consultant architect + An arborist report by Ms S. Slaytor, but she was not called for crosss-examination. + A driveway gradient, parking and access and sewerage report by Mr N Petherbridge, but he was not called for cross-examination. 30 The site has an area of 1,363 sq m with a street frontage of 15.45 m, and a depth of about 95 m on the north side and 84 m on the south side. The side boundaries are approximately square with the street boundary. Due to the splay of the eastern boundary referred to previously, it is 20.5 m long. 31 There is a paper bark tree in the front setback, that is in the location of the proposed driveway and so it is sought for removal. There is a young Cook Island pine about half way along the northern boundary on the site set in about 4 m from the boundary. It would be removed by the proposed building. The neighbours in No. 48A seek a change to the proposal to keep that tree as it would break up the long length of the northern façade as seen from their back yard. 32 In regard to Issue 19(xiii), that concern was overtaken by the withdrawal of Issue 17 on Sewerage. The final proposal had two options, one provided for all units to have gravity connections to the existing sewer, but it involved under boring a healthy stand of 5 or more Cook Island trees on No. 48A that grow close to the common boundary with the subject site about half-way along its northern boundary. It would also involve works on No. 48A to connect the bore into an existing sewer manhole. 33 The other option was to divert the existing sewer main where it crossed the site and get gravity sewer to all except Unit 6. The latter would have a collection and pump-out tank to be located on-site uphill of the coastal erosion hazard line contrary to an earlier scheme referred to in Issue 19(xiii). The relocation of the sewer on-site would mean excavation in the proximity of some of the Cook Island pines. 34 The parties agreed on this latter scheme as the arborist report said that a 4m radius "no go zone" from the nearest trees could be achieved to protect the pines, and it avoided any works on neighbouring properties. The pump-out being out of the coastal hazard line and only for one unit was considered acceptable. 35 Stormwater would be dealt with by a 6 kilolitre tank under the building that could be used for irrigation, but having an overflow to soakage trenches in the 18m beachfront setback at the east end of the property. 36 A landscape plan was tendered at the hearing showing three replacement trees in the front setback for the paperbark. The arborist report said the paperbark is healthy, but it could be seen on-site that it had an unusual canopy either due to pruning or wind-cropping and stood about as high as the existing building. The tree is a "local keystone specie". The landscape plan shows it replaced with three similar melaleuca linarifolia, but not the keystone mel. Quinquenervia. The respondent did not object to the replacement specie, and the proposal includes understorey planting of indigenous coastal heath species. 37 Narrow side boundary vegetation is proposed except where paving or stairs directly adjoined the boundary (along most of both sides, the setbacks are 1.5 m or less). Some planter vegetation is proposed on the terraces and balconies. 38 At the beachfront the 18 m setback is proposed to retain most of the bitou bush weed that covers it, and only place some coastal heath species in front of the ground floor unit's terrace. In contention is the proposed stand of banksia and Cook Pines adjacent the northern boundary directly outside the south facing living and dining room windows of No.48A. These windows afford a pleasant view along the sand-water interface of Toowoon Bay Beach immediately south. 39 No.48A also complained that the north-eastern corner point of the proposal would obstruct the same view enjoyed from their kitchen window and asked that the last 2 m of the corner be deleted. 40 During the hearing it was agreed that all of the bitou bush weed must be removed and replaced with indigenous coastal heath species, but the fate of the copse of banksia and pine is left to the Court. 41 The applicant notes that despite the existing use rights meaning that any controls or statutes that derogate from those rights shall not apply, the proposal does comply with most. 42 Height: the proposal is 2 storeys for the most part and 3-storeys are permitted on steep slopes. The proposal has a very small part of the building on the steep slope that is 3 storeys, and it does not interfere with views. It complies with the requirement of 7m maximum to the ceiling of the top floor, and 11m maximum to the top of the roof – in fact it is 1 m below that. 43 Setbacks: it has the 6 m front setback and 1.5 m side setbacks, and is behind the Foreshore Erosion Hazard line. These are better than some adjoining and nearby buildings. 44 Density: It complies with the maximum site cover of 60%. The existing building has 15 bedrooms in 7 units, the proposal is 6 units with 18 bedrooms. It is comparable with existing occupancy potential. That is the measure of density. 45 Bulk/scale: It has articulation in some experts' opinions, complies with the height requirements, it is proportional to its large site area compared to the smaller battle-axe lots adjoining and nearby. 46 Privacy: there is a component of cross-overlooking by neighbours upon each other in this locality due to everyone wanting as much view as possible. No-one can have complete privacy where view sharing with neighbours is provided. The proposal has put screening devices in where reasonable. 47 Overshadowing: the control of the height and stepping of the building has reduced this to a minimum such that southern neighbours retain substantial sunlight. 48 Views: the design has been articulated to minimise loss of views for neighbours, even though those views are ACROSS the site and Tenacity V Warringah [2004] NSWLEC140 says that such views are difficult to justify for retention. 49 In considering the view loss evidence, I conclude as below. 50 In the case of No. 52A, the concern was loss of view north to Norah Head, and down to the beach BOTH across the subject site. No view to the beach itself was possible otherwise due to existing buildings on other lots. During the site visit it was observed that from the Currie's rear deck one could only see Norah Head by going to the balustrade at the south-east end, and sighting Norah Head through the branches of one of the Cook Island pines on No. 48A. The applicant said that view must only have become available after two of the Cook pines said by Mr. Woodford as having mysteriously died. Their stumps are in that view line. 51 The Currie's retain their full panorama except from a sitting position at their table setting, a small part of the ocean view to the north-east will be lost, but the aspect and sky component of it will remain due to the deliberately splayed east elevation of the proposal. The view to the beach will be reduced. There would have been a larger proportion kept if No.48A had complied with the Foreshore Erosion Hazard line. But, due to the proposal complying with the hazard line, and being flat roofed, there will be a part of the beach/water interface still seen from Currie's rear deck. 52 In the case of No. 48, the Ede's, their view to the north and north-east is magnificent over Blue Bay and the headland to the north and Norah Head beyond. It remains untouched. Directly east the stand of Cook Island pines on No. 48A stops any view towards the ocean. Their view to the south-east is between the existing flats on the site and the Cook pines and over the roof of No. 52. They see the water in Toowoon Bay and the end of the rocks at the south of the bay. It is not a primary view, it is a narrow view and it would remain with perhaps a little less of the landward part of the rocks seen. 53 In regard to the loss of view from the kitchen of No. 48A, Mr Woodford said that the splay of the beach boundary has caused a building design anomaly. It forms a N-E corner that is a very small part of the living room floorspace. It is within the acute angle formed by the splay. The respondent submitted that the plans should be amended to cut off the acute corner. The very small reduction in floor space relates to an area which offers extremely limited useability and utility. Significantly, if this area were removed, there would be no impact at all on the views enjoyed from the proposed development. However, the current proposal if approved would completely remove No 48A's highly valued and significant view from their kitchen. The proposed design change also reflects the approach taken by the building on the beach at No 52 Werrina Parade. 54 The applicant said that the Woodford's of all the neighbours had the least to complain about. Their panoramic north, east and south views of the ocean across THEIR land are unaffected. Under Tenacity there would be little justification to retain the view from the kitchen, a work space of a house, when views to the south through their living and dining SIDE windows and ACROSS the subject site would be kept. Also the applicant had agreed to conditions amending parts of the parapet to the Communal Terrace that the Woodford's did not like. 55 It seems to me that the proposed copse of banksias and Cook Island pine at the north-east corner of the site and this part of the proposed building would, in time, take out the view of the water-land interface that is considered under Tenacity to be of high value, even though in this case it is across a side boundary. The banksia and understorey are not likely to grow up into the viewlines from No. 48A's windows, so the Cook Island pine should be deleted. Retaining the view from the dining and living rooms would usually be enough and effects only the landscaping. The submission of the Council on the limited usability of the acute corner of the proposal has some merit and seems to be a minor change that minimises impacts on No. 48A. This eliminates ALL view loss for No. 48A which is an unusually beneficial outcome when view sharing between neighbours mostly results in both losing some views or parts of views. 56 In doing that a matter of privacy should also be attended to. The plans show a window on the north side of Unit 4's living room directly opposite the kitchen window of No. 48A, and a narrow return balcony from the beachfront along the north side. The window will be reduced in size via the cutting back of the acute corner however the window should have obscured glass to avoid vision whilst maintaining light. The return balcony should be deleted for privacy of No. 48A. 57 Other privacy concerns of neighbours were resolved by the parties agreeing to conditions for privacy screens in appropriate positions and prevention of view loss by any future installations. 58 The other objection of No. 48A to the length of the north elevation of the proposal as seen from their back yard needs consideration. It is related to the over-arching issue put by the respondent that the length of the proposal is so out of character with the locality that it should not be approved. 59 The respondent's evidence is that the pattern of development and the current zoning has resulted in a "green space" between the beach-front and the street-front houses that is a characteristic of the area and should be repeated by any proposal on the subject site by splitting it into two buildings. 60 Mr Sneddon for the applicant had considerable experience as a government regional planner and consultant. In analysing the locality he said first that the proposal, on an intact original large lot is not unlike the size and proportions that a wealthy owner might build as a single luxury house or mansion. Blue Bay is a beautiful location in high demand by the wealthy. 61 Compared to Nos. 52 and 52A for bulk and size, they both had higher, multi-facetted "wave" roofs of greater bulk than the proposal. And, due to the narrow un-vegetated car courtyard and high retaining wall between them, No.s 52 and 52A could hardly be said to reflect the "green space" between houses claimed for the locality. Their bulk and combined length is similar to the proposal. Their paved driveway beside the site from street almost to beach had almost no vegetation. 62 The houses north of the site had a space between the beach-front and the street-front buildings but they were mainly for driveways and car courtyards with some trees and shrubs provided they did not block views. They are hardly "green spaces" in the full sense of the words. The Woodford's except for their delightful stand of Cook pines against the Ede's boundary have very little except grass and driveways in their "green space". 63 This gap between the houses to the north is not reflective of a landscape feature of the topography or pre-development vegetation. It is a result of subdivision of battle-axe lots and the need for utility services connections, driveways, manoeuvring areas (because it is too far to reverse cars to the street) and backyards. Mr Sneddon showed this by mapping paved areas on aerial photos of the locality. 64 He found no planning instrument or development control plan that required the gap. 65 The gap space is really only evident for 3 house-lots north of the site, and he showed this from aerial photographs. After that the curve of the bay reduces the depth of lots between the parade and the beach such that the gap is not evident visually. 66 Mr Sneddon said the character of the locality can be described also as "context" and he had several other photos taken from the ocean, from the street and between houses and aerial to illustrate. There are other blocks of flats in Werrina Parade and/or fronting the beach of more recent vintage that are up to 4-storeys high set above high foundations due to the slope of the land. This gives them the bulk of 5-storeys. 67 Most houses although classified as 2-storeys are also above high foundations giving them the bulk of 3-storeys. The recently built No.48 is an even larger example of that, as it actually has a 3rd storey attic, technically giving it a 4-storey appearance from the ocean side. This cannot be seen easily of course due to the tall stand of Cook pines in front. 68 There were also photo-montages, in evidence, of the proposal inserted into this context. Mr Sneddon said these illustrated how the lower, by comparison, height of the proposal and its stepping down the hill would fit into the context of the existing buildings within their streetscape and coastal landscape settings. 69 In terms of complaints about the flat roofed design also being out of character he said the flat roofs are partly due to the design objective of view retention for neighbours and minimising bulk and overshadowing, although the latter would mainly be of paved driveways. Shown in his photos it could be seen there were hipped roofs, gabled roofs of various pitches, styles and materials, flat roofs and, as seen next door, the high multi-facetted "wave" roofs of No.s 52 & 52A. There is no consistent architectural style or roof design that would require a change to the proposal he said. It is a contemporary functional design that takes more account of its neighbours and potential impacts than many others, especially considering its existing use rights. 70 The single Cook pine on the subject site is a young tree and separated from the stand on No. 48A. In council's controls it is the Norfolk Island pine trees abundant in the locality that are considered to have importance. The council's assumption that the tree has "historic" association with the site is unexplained. It could not be sufficient for refusal. 71 Turning back to the Woodford's concern about the north elevation, the applicant's evidence shows there is some articulation in the wall via bay window indentations, stepping of the building, and overhanging vegetation from the planter troughs built into the communal terrace. There are also panels of louvres used in many places on elevations to give interest and break up the length of walls. Boundary landscaping on the protected north side of the proposal should also thrive, and if taller species are used than shown in the landscape plan, it should further soften the architectural form. Given this I see no weight in this complaint of the Woodford's. 72 Another concern on the north elevation relates to the Ede's bedrooms. Their house has its bedrooms on the lower level adjacent the proposal's large louvre grille ventilation to the carpark. They are concerned about noise at night reverberating in the carpark, the operation of the turntable there to rotate cars for exit in a forward direction, and related manoeuvring. This is a reasonable concern, and I adopt a condition requiring deletion of the north elevation grilles and details of roof exhaust ventilation to be incorporated. 73 Overall, I have come to the conclusion that the proposal is worthy of approval subject to the matters referred to above. 74 Given the exhaustive evidence on the issues in contention, the parties forwarded amended draft conditions with alternatives for unresolved conditions on 1st August 2007. The draft conditions had spread throughout, requirements that change the plans on important details related to the evidence. The dispersed layout of these conditions required matters that change the plans even at the "Prior to issue of Occupation Certificate" stage. This is unsatisfactory for, the council, an applicant or a private certifier to have easy understanding of the conditions. 75 Rather than re-write the conditions myself, putting all the changes required to the drawings in Condition 1 where they should be, I conclude the most efficient process is to give deferred commencement consent so that the council and the applicant will have an amended set of plans in compliance with the conditions. I incorporate conditions for the matters found in this judgment. 76 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Deferred development consent is granted for the demolition of existing buildings and the erection of a block of six (6) apartments at No. 50 Werrina Parade, Blue Bay, the Entrance as shown in drawings nominated in Part A Condition 1 of Annexure A to this consent all as amended by and built in accordance with the conditions contained in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits A, B, C, J, 1 and 11. ________________________ K G Hoffman Commissioner of the Court ljr 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.