Land and Environment Court New South Wales Medium Neutral Citation: Soutar v Pittwater Council [2013] NSWLEC 1199 Hearing dates: 16-17 October, 2013 Decision date: 22 October 2013 Jurisdiction: Class 1 Before: O'Neill C Decision: 1. The appeal is dismissed. 2. Modification Application No. N0197/09/S96/1 for an increase in the height and site coverage is refused. 3. The exhibits, other than exhibits 1 and A, are returned. Catchwords: MODIFICATION APPLICATION: retrospective consent to increase height and site coverage, impact on views, impact on solar access and precedent. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Cases Cited: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Kendall Street v Byron Shire Council (2004) 138 LGERA 360 Tenacity Consulting v Waringah [2004] NSWLEC 140 The Benevolent Society v Waverley Council [2010] NSWLEC 1082 Zhang v Canterbury City Council (2001) 115 LGERA 373 Category: Principal judgment Parties: Troy Soutar (Applicant) Pittwater Council (Respondent) Representation: Mr Tony Sattler (Solicitor) (Applicant) Mr Nick Eastman (Barrister) (Respondent) Solicitors Sattler & Associates (Applicant) King & Wood Mallesons (Respondent) File Number(s): 10596 of 2013 Judgment 1COMMISSIONER: This is an appeal pursuant to the provisions of s97AA of the Environmental Planning and Assessment Act 1979 against the refusal of Pittwater Council (the Council) to modify Development Consent N0197/09 at 818 Barrenjoey Road, Palm Beach (the site). The Modification Application No. N0197/09/S96/1 (the proposal) is to increase the height of the dwelling and its site coverage. The works were complete at the time of lodgement and the Applicant seeks retrospective consent. 2The appeal was subject to mandatory conciliation on 16 October, 2013, in accordance with the provisions of s34AA of the Land and Environment Court Act 1979. As no agreement was reached during the conciliation phase, the conciliation conference was terminated pursuant to s34AA(2)(b) and the proceedings dealt with as a hearing held forthwith, pursuant to s34AA(2)(b)(i). Issues 3The Council's contentions in the matter can be summarised as: * The proposal does not comply with the maximum permissible building height control and this leads to an unacceptable impact on the views from 820A Barrenjoey Road and an unacceptable increase in the bulk and scale of the dwelling, which does not accord with the desired character of the locality; * The proposal results in unacceptable overshadowing of the neighbouring dwelling to the south, 816 Barrenjoey Road; * The proposal does not comply with the required maximum site coverage of 40% and does not satisfy the outcomes of the control; and * The proposal breaches the building envelope controls for side boundaries and this results in an overly large and bulky building and a loss of residential amenity for neighbouring properties, and does not satisfy the outcomes of the control. The site and its context 4The site has an area of 1013 square metres and is on the eastern side of Barrenjoey Road, on a steep slope, falling towards the road. The site and neighbouring properties enjoy panoramic views over Careel Bay. The dwelling is located towards the rear of the site. 5820A Barrenjoey Road is a battleaxe block and is situated higher up the slope, to the east and rear of the site at 818 and 820 Barrenjoey Road. There are views to Careel Bay from the living areas and terrace of 820A Barrenjoey Road, over the dwellings below. 6816 Barrenjoey Road is to the south of the site and 820A Barrenjoey Road and shares a side boundary with both these properties. The living areas of 816 Barrenjoey Road are on the northern side of the dwelling, opening onto a verandah that wraps around the northern and western sides of the dwelling. Background and the proposal 7Development Consent N0197/09 was approved on 13 August 2009 for the demolition of the existing dwelling and construction of a new three storey dwelling with separate garage and games room over, new driveway, swimming pool and associated retaining walls and landscaping. 8The proposal seeks consent for modifications made to the original consent during construction, which can be summarised as: * The height of the parapets have been increased by 585mm on the eastern side, rising to 1080mm on the western side (RL 21.56). The overall increase in the height of the dwelling is a result of the following: * The upper two finished floor levels (FFL) have been raised: the Family Floor Level (Ground Floor) is 180mm higher and the Bedroom Level (First Floor) is 320mm higher than the levels shown on the approved plans; * The roof has been modified to a shallow skillion form, falling to the east and the floor to ceiling height of the Bedroom Level (First Floor) has been increased from a flat ceiling 2450mm above FFL to a raked ceiling 2450mm above FFL at the eastern side and rising to approximately 3000mm above FFL on the western side; * The pool deck area (Lower Ground Floor) has been roofed instead of an open pergola over and the floor has been formed with a concrete slab instead of soft landscaping; * A concrete pathway has been added along the southern side of the dwelling; * A door has been added on the southern facade, from the Billiard Room on the Family Floor Level (Ground Floor); * The sill height of W12 in the Billiard Room on the Family Floor Level (Ground Floor) on the southern facade has been lowered by 400mm to increase the overall area of the window; * The FFL of the games room, above the garage, has been raised 80mm; * The storage area under the garage, at the footpath level, has been deleted; * Additional minor modifications. Planning Framework 9The site is located within the 2(a) (Residential 'A') Zone, pursuant to Pittwater Local Environmental Plan 1993 and the proposal is permissible with consent. 10The proposal is subject to the relevant provisions of Pittwater 21 Development Control Plan (DCP 21). Part A of DCP 21 contains context statements for the various precincts within the municipality and desired character statements for those precincts. The site is located within the Palm Beach Locality and the Desired Character statement, at clause A4.12, includes the following: The Palm Beach locality will remain primarily a low-density residential area with dwelling houses in [of a] maximum of two storeys in any one place in a landscaped setting, integrated with the landform and landscape. 11Clause C1.3 'View Sharing' includes the following relevant outcomes: A reasonable sharing of views amongst dwellings. (S) Views and vistas from roads and public places to water, headland, beach and/or bush views are to be protected, maintained and where possible, enhanced. (S) 12Clause C1.3 includes the following relevant controls: The proposal must demonstrate that view sharing is achieved through the application of the Land and Environment Court's planning principles for view sharing. Where a view may be obstructed, built structures within the setback areas are to maximise visual access through the structure eg by the provision of an open structure or transparent building materials. 13Clause C1.4 'Solar access' includes the following relevant outcome: A reasonable level of solar access is maintained to existing residential properties, unhindered by adjoining development. (En) 14Clause C1.4 includes the following relevant controls: The main private open space of each dwelling and the main private open space of any adjoining dwellings are to receive a minimum of 3 hours of sunlight between 9am and 3pm on June 21st. Windows to the principal living area of the proposal and windows to the principal living area of adjoining dwellings, are to receive a minimum of 3 hours of sunlight between 9am and 3pm on June 21st (that is, to at least 50% of the glazed area of those windows). The proposal must demonstrate that appropriate solar access is achieved through the application of the Land and Environment Court planning principle for solar access. 15Clause C1.4 permits a variation to the controls as follows: Subject to a merit assessment, consent may be granted where a proposal does not comply with the standard, provided the resulting development is consistent with the general principles of the development control, the desired future character of the locality and any relevant State Environmental Planning Policy. 16Clause D12.4 'Height' includes the following relevant outcomes: To achieve the desired future character of the Locality. (S) Building should reinforce the bushland landform character of Pittwater and be designed to preserve and strengthen the bushland character. Building design, location and landscaping is to encourage view sharing between properties. Equitable preservation of views and vistas to and/or from public/private places. (S) 17Clause D12.4 includes the following relevant controls: The maximum height of a building or structure shall be 8.5m. 18Clause D12.4 permits a variation to the height control for steep sites up to a maximum of 10m for minor parts of the building, provided: the outcomes of this control are achieved, the building footprint is situated on a slope in excess of 16.7 degrees (ie 30%), the visual bulk of the development is minimised, particularly when viewed from down slope, buildings are sited and designed to take into account the slope of the land to minimise the need for cut and fill by designs which allow the building to step down the slope. 19Clause D12.8 'Building envelope' includes the following in relation to side setbacks: Planes are to be projected at 45 degrees from a height of 3.5m above natural ground level at the side boundaries to the maximum height (refer to relevant height under Part D Localities). 20Clause D12.10 'Site coverage' includes the following relevant outcomes: Achieve the desired future character of the locality. (S) The bulk and scale of the built form is minimised. (EN, S) A reasonable level of amenity and solar access is provided and maintained. (En, S) 21Clause D12.10 includes the following relevant controls: Maximum Site Coverage (%) Minimum Landscaped Area (%) 40 60 Any alterations or additions to an existing dwelling can not extend beyond the maximum site coverage permitted in the above table. 22A variation to the site coverage control is permitted if the outcomes of the control are achieved. The variation permits impervious areas less than 1m in width, such as pathways, to be provided in addition to the maximum site coverage and up to 6% of the total site area to be provided as impervious landscape treatments for outdoor recreational purposes, no higher than 1m above natural ground level. Public submissions 23The Court, in the company of the experts and parties, visited two neighbouring properties and the owners of each property provided evidence. 24The concerns of the owner of the adjoining property to the south, 816 Barrenjoey Road, can be summarised as: * The roof of the proposal has been raised more than 1m above what was approved and this significantly impacts on sun and light in the living areas of her house, particularly winter sun, as it is lower in the sky than in summer; * The southern elevation of the proposal is a massive dark brown wall, which is now higher and more imposing that what was approved; * A door has been added on the southern facade and this was not shown on the approved drawings; and * A window has been enlarged on the southern facade when compared to the approved drawings and this compromises her privacy in her living room and verandah. 25The concerns of the owner of the adjoining property to the east, 820A Barrenjoey Road, can be summarised as: * The roof has been raised more than 1m and while the impact on the overall vista from his house is minor, it is beyond what was approved; and * The expanse of the skillion form of the roof dominates the foreground views from his living areas and terrace. Expert evidence 26Expert planning evidence was provided by Mr Vaughan Milligan for the Applicant and Ms Gina Hay for the Council. Height of the proposal 27The planning experts agree that the highest point of the proposal above natural ground level is the parapet of the western facade, at the northern end and at that corner it is 8.81m above natural ground level. This is an increase in 1.08m when compared to the approved plans. 28The planning experts agree that the site is a steep site on the basis that the building footprint is situated on a slope in excess of 16.7 degrees (30%). 29The planning experts disagree whether or not the proposal is eligible for a variation to the height control for steep sites up to a maximum of 10m for minor parts of the building. Ms Hay says that the proposal does not meet the outcomes for the control (quoted above in par 16) due the scale and massing of the development, which dominates the natural setting and leaves minimal opportunities for significant landscaping and therefore a variation to the height control for steep sites should not be permitted (exh 3, par 3.2.2.4 and oral evidence). In her opinion, the visual bulk of the overall building, when viewed from Barrenjoey Road, has been increased by the proposal (exh 3, par 3.2.2.3). 30Mr Milligan conceded in oral evidence that were the proposal a 'paper application', he would recommend that it comply with the 8.5m height limit. However, while the height above natural ground level at the north-western corner is numerically non-compliant, it is only a minor part of the building and the variation should be permitted as the site is steep and the proposal meets the outcomes of the height control, because the overall height is similar to the height of 820 Barrenjoey Road, the landscape will screen the development when mature, the storeroom has been deleted and this reduces visual bulk and the modulated built form distributes the impression of building bulk (exh 3, par 3.2.1.4). Impact of the proposal on views from 820A Barrenjoey Road 31The planning experts agreed that the view loss from 820A Barrenjoey Road, as a result of the proposal, is minor, using the quantitative assessment to describe view loss in step 3 of the Tenacity Planning Principle (Tenacity Consulting v Waringah [2004] NSWLEC 140 pars 26-29). 32The Tenacity Planning Principle assessing the loss of views is as follows: 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable. 33Mr Milligan considers that 820A Barrenjoey Road has lost some foreground view as a result of the proposal, however the view loss is reasonable. Mr Milligan conceded in oral evidence that the 3m ceiling height in the raked ceiling within the main bedroom on the western side is generous and that lowering this ceiling (and the roof) would open up the view of the foliage in the foreground from 820A Barrenjoey Road. 34Mr Milligan conceded in oral evidence that he is 'dealing with what is there now' in terms of the impact of the proposal on the view from 820A Barrenjoey Road and that were the proposal a 'paper application', in his view the proposal should respect Council's controls and that a proposal that goes from compliant to non-compliant does not justify a variation to the view sharing principles. 35Ms Hay considers that the proposal places the 'unrelieved expanse of roof more prominently in the foreground of the view [from] 820A Barrenjoey Road' (exh 3, par 3.1.2.3) and that the unreasonableness of the proposal, by exceeding the height control, means the proposal does not comply with the view sharing principles set out in the Tenacity Planning Principle (exh 3, par 3.2.1.4). 36Mr Milligan considers that the minor view loss from 820A Barrenjoey Road is reasonable because the overall height of the proposal is consistent with the overall height of the neighbouring dwelling at 820 Barrenjoey Road, also in the foreground of the views from 820A Barrenjoey Road (exh 3, par 3.1.1.3). Impact of the proposal on solar access to 816 Barrenjoey Road 37The planning experts agree that the proposal has further overshadowed the living areas of 816 Barrenjoey Road when compared to the approved development. They agree that 816 Barrenjoey Road is vulnerable to being overshadowed by a development on the site, as it is to the north of 816 Barrenjoey Road and the dwelling at 816 Barrenjoey Road is positioned adjacent to the shared side boundary between the two properties with its living areas on the northern side. 38Ms Hay said in oral evidence, observing exhibit G (shadow diagrams of the northern and western facades of 816 Barrenjoey Road, each hour on the winter solstice), that the proposal has significantly worsened the overshadowing of the glass doors and verandah of 816 Barrenjoey Road on the northern side during the afternoon on the winter solstice. In her opinion, 816 Barrenjoey would not retain at least three hours of sunlight between 9am and 3pm on the winter solstice. She considers that the non-compliance of the height of the proposal tips the level of solar access loss to the dwelling at 816 Barrenjoey Road from significant but acceptable for the approved development, to unacceptable (exh 3, par 3.3.3.1). 39Mr Milligan says that the proposal has no impact on the solar access of the western elevation of 816 Barrenjoey Road, facing the view. He considers that the setback of the southern elevation of the top floor, which ranges from 2.515 at the eastern end to 6.63m at the western end is adequate. 40Mr Milligan considers that the more significant impact on the solar access to the northern and western decks and adjacent internal areas of 816 Barrenjoey Road is the verandah roof overhanging the northern and western facades and not the proposal (exh 3, par 3.3.2.8). 41The experts agree that the proposal breaches the side setback on the southern side and Mr Milligan says the breach occurs at the parapet of south-western corner, which is the study on the Bedroom Level (First Floor) (exh 3, par 3.5.2.2). Site coverage 42Ms Hay rechecked the site coverage calculation during the hearing and calculated it to be 54.29% (exh 8), taking into account the permitted variations under site coverage control (quoted above in par 22). The Applicant accepts the Council's calculation. 43Ms Hay considers that the breach of the site coverage control results in reduced areas available to provide landscaping to soften the appearance of the development (exh 3, par 3.4.2.2) and she said in oral evidence that the desired character for Palm Beach was houses in amongst the trees, not trees amongst the houses. Submissions The proposal is substantially the same development 44Mr Eastman submits that the Council is satisfied that the proposal to modify the consent granted is substantially the same development for which consent was originally granted, pursuant to s 96(2)(a) of the EPA Act. The Court's task 45Mr Eastman submits that the Court's task is to assess this proposal on its merits as if it were a 'paper application' and not to consider some relaxation of the assessment standards on the basis that the works are constructed, as this would be legally erroneous. Mr Sattler concurs with this approach. 46Mr Eastman further submits that a consent to the modification application, if granted, 'is effective to oust the prohibitory effect of s 76A' of the EPA Act (Lloyd J in Kendall Street v Byron Shire Council (2004) 138 LGERA 360 par 25), however the Court is not being asked to consider the effect upon the applicant if consent is not granted. Impact of the proposal on views from 820A Barrenjoey Road 47Mr Eastman submits that the height of the proposal is above the height control and the proposal is not eligible for the variation permitted for steep sites, as the outcomes of the control are not achieved. 48Mr Eastman submits that even a minor impact on views from 820A Barrenjoey Road is unjustified, because the proposal does not comply with the height control. Achieving the maximum height control is not 'as of right', it must also satisfy the outcomes of the control. 49Mr Sattler submits that the only portion of the view from 820A Barrenjoey Road lost as a result of the development at the site, including the proposal, is a view of the foliage in the foreground. Impact of the proposal on solar access to 816 Barrenjoey Road 50Mr Sattler submits that the Applicant is willing to offer to fund the installation of Velux skylights to the owner of 816 Barrenjoey Road as a cure for the impacts of the proposal on the solar access and a proposed condition of consent for the offer was tendered (exh C). 51Mr Eastman submits that the skylight offer represents a poor planning outcome as impacts of the proposal should be ameliorated on the site and not by carrying out alterations to a neighbouring dwelling. Impact of the proposal on the privacy of 816 Barrenjoey Road 52Mr Sattler submits that the Applicant is willing to install fixed external louvres over the window on the southern facade, identified as W12, to address the privacy concerns raised by the neighbour at 816 Barrenjoey Road. Precedent 53Mr Eastman submits that the proposal, if approved, would create a planning precedent for future applications to exceed the numerical controls in DCP 21. 54Mr Sattler submits that another applicant is unlikely to be persuaded by an approval in this matter to undertake illegal building works and seek retrospective consent by lodging a modification application to remedy what has been constructed, as such a path carries significant risk. Findings 55I accept Mr Eastman's submissions regarding the Court's task in this matter. I have set aside the fact that the Applicant's dwelling was not constructed in accordance with the approved plans. The matter to be determined is whether, on the merits, the additional height is acceptable in terms of its impact on the views from 820A Barrenjoey Road and the overshadowing of 816 Barrenjoey Road and whether the additional site coverage minimises the built form and achieves the desired future character of the locality. 56In considering the proposal, I have made the relevant provisions of DCP 21 a focal point and given them significant, but not determinative, weight (Zhang v Canterbury City Council (2001) 115 LGERA 373 par 75). Height of the proposal 57The planning experts agree that the proposal exceeds the height control of 8.5m (D12.4 of DCP 21) for a small section of the north-western corner of the parapet. They disagree on whether the proposal is entitled to a variation of the height control for steep sites, on the basis of whether the proposal meets the outcomes of the control. 58The relevant outcomes for the height control include: Building design, location and landscaping is to encourage view sharing between properties. Equitable preservation of views and vistas to and/or from public/private places. 59For reasons explained in the following section of the judgment, the increase in the height of the proposal has caused a further detrimental impact on the views from the living areas of 820A Barrenjoey Road, even though the planners agree that this impact is minor. As a result, I am not satisfied that the proposal achieves the relevant outcomes of the height control for view sharing and therefore a variation to the height control cannot be granted. 60The approved development is constructed high on the site. While the location of the approved development is a less common configuration for site layout, being towards the rear of the site, I understand that its location is a response to the unique nature of the site and circumstances and I accept that the location of the approved development results in a better outcome, in terms of the layout of the site, maximising views from the development and its relationship to and impact on views from 816 Barrenjoey Road. However, as the site is steeply sloping and the development is located high and towards the rear of the site, the impact of the height of the development on the adjoining property to the rear is an important consideration. Consequently, there should not be an expectation to necessarily achieve the maximum permissible height limit, let alone exceed it. 61I accept that the height control is exceeded for only a small section of the north-western corner of the parapet, however it is this overall height of the parapet that impacts on the views from 820A Barrenjoey Road and results in the non-compliance of the south-western corner of the parapet (adjacent to the study on the Bedroom Level - First Floor) with the building envelope control (D12.8 of DCP 21). The non compliance of the south-western corner of the parapet with the building envelope control results in unacceptable impacts on the solar access to the living areas of 816 Barrenjoey Road. 62For these reasons, I find that the increased height of the proposal has lead to detrimental impacts on the neighbouring properties and has increased the bulk and scale of the proposal when viewed from Barrenjoey Road and the impacts are of such consequence that the modification application should be refused. Impact of the proposal on views from 820A Barrenjoey Road 63I disagree with Mr Milligan that the minor view loss from 820A Barrenjoey Road is reasonable because the overall height of the proposal is consistent with the overall height of the neighbouring dwelling at 820 Barrenjoey Road, also in the foreground of the views from 820A Barrenjoey Road. While the height of the ridge of the hipped roof of 820 Barrenjoey Road RL 21.6 (exh 2, f 174A) is similar to the proposal (RL 21.56 and RL21.58 on the northern side), the highest point of the roof of the proposal is at the western facade, which is the facade furthest away from 820A Barrenjoey Road. The ridge of the hipped roof of 820 Barrenjoey Road is in the centre of the roof, approximately 4m closer to 820A Barrenjoey Road when compared to the western facade of the proposal. The design of the skillion roof of the proposal, with its highest point further away from 820A Barrenjoey Road, results in the height of the proposal having a greater impact on the views from the living areas of 820A Barrenjoey Road compared to the impact of its neighbour's roof, despite being at similar heights. 64I accept the agreement of the experts that the impact of the proposal on the view loss from 820A Barrenjoey Road, as a result of the proposal, are minor, using the quantitative assessment to describe view loss in the Tenacity Planning Principle. 65I also agree with Ms Hay that the proposal exacerbates the unrelieved expanse of roof in the foreground of the view from 820A Barrenjoey Road. 66I understand the purpose of Mr Sattler's submission, that the only portion of the view from 820A Barrenjoey Road lost as a result of the development at the site, including the proposal, is a view of the foliage in the foreground, is to demonstrate that 820A has not lost any of its panoramic views of Careel Bay. However, in my opinion, views of foliage in the foreground of a panoramic water view are preferable to an expanse of roof that dominates the foreground of the view. I noted when standing on the terrace of 820A Barrenjoey Road that it is possible to see filtered views of the land/water interface of the beach and Careel Bay through the trees either side of the western parapet of the proposal, which means that the proposal has obscured any filtered views of the beach through the foliage, albeit a small strip between the approved roof height and the proposal, when viewed from the terrace of 820A Barrenjoey Road. 67In my view, a more skilful design could have achieved the same development potential and amenity and reduced the impact on the views from 820A Barrenjoey Road. The west-east sections through the proposal (Sections B-B Dwg A011 and A-A Dwg A10, exh B) demonstrates that the large central section of top floor of the three levels of the proposal aligns approximately with the western facade on the two levels below and the balcony off the main bedroom of the top floor projects beyond the western facade on all levels. While the proposal steps to the side of this central section, it is the western parapet of this central section that has increased by 1.08m and causes the impact on the views from 820A Barrenjoey Road. A proposal that stepped back from the western facade on the upper level would have minimised the impacts on views from 820A Barrenjoey Road, complied with the height control and possibly avoided the non-compliance with the building envelope control, while maintaining the higher floor levels of the proposal when compared to the approved plans. 68The approved development would have enjoyed expansive bay views from all levels. The increase in the height of the proposal when compared to the approved plans (and the increase in the FFL of the upper two levels) has caused a further detrimental impact on the views from the living areas of 820A Barrenjoey Road. Therefore on balance and considering the principles of view sharing, I am satisfied that the proposal unreasonably increases the impact on views from 820A Barrenjoey Road. 69Furthermore, the unreasonableness of the proposal, as a function of exceeding the height control and the building envelope control for side boundaries, means the proposal does not comply with the view sharing principles set out in the fourth step of the Tenacity Planning Principle. Impact of the proposal on solar access to 816 Barrenjoey Road 70I accept the agreement of the planners that the proposal has further overshadowed the living areas of 816 Barrenjoey Road when compared to approved development and Ms Hay's evidence that the proposal has significantly worsened the overshadowing of the glass doors and verandah on the northern side of 816 Barrenjoey Road during the early afternoon on the winter solstice. 71The planners agree that the south-western corner of the parapet (adjacent to the study on the Bedroom Level - First Floor) does not comply with the building envelope control (D12.8 of DCP 21). The non-compliance of the south-western corner of the parapet with the building envelope control results in unacceptable impacts on the solar access to the living areas of 816 Barrenjoey Road. The non-compliance of the south-western corner of the parapet with the building envelope control does not warrant any relaxation of the solar access controls (C1.4 of DCP 21). 72In my view and taking into consideration the vulnerability of 816 Barrenjoey Road to being overshadowed by development to the north, the proposal has not maintained a reasonable level of solar access to 816 Barrenjoey Road. There is a reasonable expectation that a dwelling in a low density residential area will retain its existing sunlight and I am satisfied that a more sensitive design would have achieved the same amenity for the development while reducing the impact on 816 Barrenjoey Road (The Benevolent Society v Waverley Council [2010] NSWLEC 1082 par 144). 73I accept Mr Eastman's submission that the skylight offer represents a poor planning outcome, as any unacceptable impacts of the proposal should be ameliorated on the site and not cured by carrying out alterations to a neighbouring dwelling. Site coverage 74I accept the agreement of the planners that the site coverage of the proposal is 54%. I agree with Ms Hay that the proposal results in additional bulk and scale, when viewed from Barrenjoey Road and this is exacerbated by the three storey appearance of the central section of the western elevation, the projecting balcony on the top floor of the western facade, the additional height of the proposal and the roof over the pool deck area. 75The proposal results in reduced opportunities on the site to provide landscaping to soften the appearance of the development. I am satisfied that the breach of the site coverage control (D12.10 of DCP 21) does not achieve the desired character for Palm Beach to remain primarily a low-density residential area with dwelling houses in a landscaped setting, integrated with the landform and landscape. Privacy impacts on 816 Barrenjoey Road 76In my view, the offer by the Applicant to install fixed external louvres over the window on the southern facade in the Billiard Room (Family Floor Level - Ground Floor), identified as W12, would readily address the privacy concerns raised by the neighbour at 816 Barrenjoey Road. I am satisfied that the external door, added to the southern elevation adjacent to W12, has no impact on the amenity of the adjoining dwelling at 816 Barrenjoey Road. Precedent 77I accept that precedent can be a valid planning consideration ( Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75) however, I have given no weight to possibility that this proposal would have provided a precedent, had it been approved, on the basis that each application must be assessed with reference to the relevant development standards and the merits of the proposal. Conclusion 78I am satisfied that the increased height of the proposal has lead to detrimental impacts on neighbouring properties and has increased the bulk and scale of the proposal when viewed from Barrenjoey Road and the impacts are of such consequence that the modification application should be refused. 79I am satisfied that the breach of the site coverage control results in reduced opportunities on the site to provide landscaping to soften the appearance of the development and that the proposal does not achieve the desired character for Palm Beach to remain primarily a low-density residential area with dwelling houses in a landscaped setting, integrated with the landform and landscape. Orders 80The orders of the Court are: 1.The appeal is dismissed. 2.Modification Application No. N0197/09/S96/1 for an increase in the height and site coverage of an existing dwelling is refused. 3.The exhibits, other than exhibits 1 and A, are returned. ____________ Susan O'Neill Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2013