Land and Environment Court New South Wales Medium Neutral Citation: Primo Developments Sydney Pty Ltd v Woollahra Municipal Council [2019] NSWLEC 1380 Hearing dates: 7-8 August 2019 Date of orders: 15 August 2019 Decision date: 15 August 2019 Jurisdiction: Class 1 Before: Horton C Decision: The Court orders that: (1) The appeal is upheld. (2) Development consent is granted for DA558/2016 for the demolition of an existing dwelling and ancillary structures, and construction of a new 9-storey residential flat building containing 15 units including basement parking, swimming pool and ancillary site and landscape works at 448 Edgecliff Road, Edgecliff, subject to the conditions of consent set out in Annexure A. (3) The exhibits are returned except for Exhibits D, 2 and 9. Catchwords: DEVELOPMENT APPEAL – impact on state heritage item - heritage conservation area – residential apartment development – potential view loss Legislation Cited: Architects Act 2003 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Woollahra Local Environmental Plan 2014 Cases Cited: Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Texts Cited: Australia ICOMOS, The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance 2013 Heritage Office and Department of Urban Affairs and Planning, Heritage Curtilages (1996) Robert Riddel, Robin Dods: Selected Works (2012, URO Media) Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Primo Developments Sydney (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: I Hemmings SC with N Hammond (Applicant) J Hewitt (Respondent) Solicitors: Hones Lawyers (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2018/136837 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal against the refusal by the Woollahra Local Planning Panel of Development Application DA558/2016, which sought approval for the demolition of an existing dwelling and ancillary structures, and construction of a new 9-storey residential flat building (RFB) containing 15 units including basement parking, swimming pool and ancillary site and landscape works at 448 Edgecliff Road, Edgecliff (the Application). 2. The Amended Statement of Facts and Contentions (Ex 1) filed by the Council on 11 July 2019 records the background to the application and the relevant statutory controls. The contentions may be summarised as follows: 1. Contention 1: the proposed development fails to conserve the environmental heritage of Woollahra in terms of its impact on the heritage setting and significance of the adjoining heritage listed property at No.8 Albert Street known as 'Fenton'. 2. Contention 2: the proposal is inconsistent with the desired future character of the Wollaroy Precinct in Section B1.4 of the Woollahra Development Control Plan 2015 (WDCP). 3. Contention 3: the proposal is on land in or adjacent to a rail corridor and the consent authority considers is likely to be adversely affected by rail noise or vibration. 4. Contention 4: the DA should be refused because the development is not in the public interest. 1. On 14 June 2019, the Applicant was granted leave to rely on amended plans, which were entered as Exhibit A. A summary of the amendments filed with the Notice of Motion are as follows: 1. The height of the main roof form reduced by 500mm; 2. The building has been reoriented; 3. The area of private open spaces at each level has been reduced; 4. Increased western boundary and northern boundary setbacks; 5. Decreased eastern and southern setbacks; 6. The roof form above the fire stair has been lowered. 1. The hearing commenced with an onsite view at which the Court heard a number of submissions, including from residents of neighbouring apartment buildings, known as 'Chesterfield' and 'Karoola', and from Dr Michael Zanardo, an architect who spoke on behalf of a number of the residents of 'Chesterfield'. Notes taken during the submissions were agreed by the parties and later entered as Exhibit 9. 2. A number of submissions related to the bulk, height and setback of the proposed development which would have the effect of obstructing daylight and views from habitable rooms, and impose both visual privacy and noise impacts. In order to better understand the particular views currently enjoyed by residents, the Court, in the company of the parties and experts, visited a number of apartments and observed existing views in both a seated and standing position. 3. Submissions also expressed concern at the proximity of construction to, and the possible vibration impacts from the proposed to the Eastern Suburbs and Illawarra Line rail corridor which passes below the site. 4. Of particular concern to a number of residents of 'Karoola', was to ensure the continued unobstructed access across the Right of Way (ROW), which provides vehicular access from Edgecliff Road to an elevated podium level with car parking, and the building's primary resident access lobby. In particular, access for emergency vehicles was said to be important, such as ambulance as a number of the residents were elderly, and fire truck access. 5. The Court was also taken to the property located to the south of the site, at No.8 Albert Street, which is a free standing home known as 'Fenton', and a state heritage listed item in Schedule 5 of the Woollahra Local Environmental Plan 2014 (WLEP), being the former home of the noted Australian architect, Robert 'Robin' Dods, who was also the architect of the property. 6. At the commencement of the hearing, the parties advised the Court that the contentions related to town planning had been resolved through ongoing conferring between the parties and the experts. It is agreed between the parties that the proposed development is compliant in its height and floor space ratio (FSR); is acceptable when assessed against the design quality principles and controls found in the Apartment Design Guide (ADG), and the provision of car parking is consistent with the requirements of the WDCP, which is expressed as a maximum and not a minimum. 7. Consequently, while the Court was assisted on site by the planning experts, Ms Sandra Robinson for the applicant, and Mr Brett Daintry for the Respondent, evidence was only required in the proceedings from the heritage experts. 8. The heritage experts were Mr John Oultram, for the Applicant, and Mr Graham Brooks for the Respondent. The content of the joint heritage expert report, and the evidence of the experts is the subject of detailed consideration later. The site and its context 1. The site is legally described as Lot 1 in DP 325211, and otherwise known as 448 Edgecliff Road, Edgecliff. The site has a northern frontage to Edgecliff Road of 16.76m, an irregularly-shaped eastern boundary of 46.94m in total, a western boundary of 49.1m and a southern boundary of 11.58m, comprising a total site area of 719.7m2. 2. Due to the steep fall from the rear of the site to Edgecliff Road, the site itself presents to Edgecliff Road as a high sandstone wall setback from the street due to a driveway that provides a ROW to access the podium of the 'Karoola' property. 3. It is a matter of agreement between the parties that the site is not a heritage item, and neither is it part of a Heritage Conservation Area (HCA) under the WLEP. The heritage map in the WLEP (Ex 4, folio 140) shows the boundaries of the HCA most relevant to the site, which is identified in Schedule 5, Part 2 of the WLEP as the 'Woollahra HCA, item no.C15' (HCA C15). This boundary is also the border between two Precincts as defined by the WDCP. The site is within the 'Wollaroy' Precinct, with the 'Rosemount' Precinct adjoins to the south. 4. The northern boundary of HCA C15 follows the site boundary of properties on the northern side of Albert Street, to the south of the subject site. This traces the line of the property boundary of the heritage item known as 'Fenton', and two other heritage items that are associated with St Joseph's Church at No.12 Albert Street, and the Friary at No.14 Albert Street but as stated, does not encompass the site, or the immediately adjoining properties fronting Edgecliff Road. 5. As a consequence, Mr Hemmings SC for the Applicant, submits that there is no statutory ground on which I am required to consider the impact of the proposed development on a heritage item or a HCA that adjoins the site. Furthermore, Mr Hemmings notes that, for the reasons set out in [14], I should strike out and disregard that portion of the joint expert report in which Mr Brooks provides opinion on the significance of the building currently on the site, and which I consider further at [42]. 6. However, for the reasons set out below, I allowed the joint expert report to be entered in full as Exhibit 5. Firstly, the question of heritage impact clearly lies at the centre of the issues which remain in dispute in this matter. Secondly, Mr Oultram's expert opinion appears alongside that of Mr Brooks in the joint expert report, and it was the stated intent of the parties to call the experts for concurrent evidence. Thirdly, I consider the objectives of the WLEP and the WDCP to be broadly framed so as to encourage the consent authority, or the Court on appeal, to consider heritage not in isolation, but also for related matters such as a setting, views and curtilage of heritage items and HCAs. 7. To this end, I note that the objectives of cl 5.10(1) of the WLEP provide, relevantly: (a) to conserve the environmental heritage of Woollahra, (b) to conserve the heritage significance of heritage items and heritage conservation areas, including associated fabric, settings and views, … 1. I accept the Applicant's submission that subcll 5.10(2) and (4) do not apply in this case as those provisions relate to works that involve a heritage item, or a building in a HCA. 2. Subclause 5.10(2) is in the following terms: (2) Requirement for consent Development consent is required for any of the following: (a) demolishing or moving any of the following or altering the exterior of any of the following (including, in the case of a building, making changes to its detail, fabric, finish or appearance): (i) a heritage item, … (b) altering a heritage item that is a building by making structural changes to its interior or by making changes to anything inside the item that is specified in Schedule 5 in relation to the item, … (e) erecting a building on land: (i) on which a heritage item is located or that is within a heritage conservation area, or … 1. Subclause 5.10(4) provides that a consent authority must consider the effect of proposed development on a heritage item or HCA but only in respect of an application related to a heritage item or HCA: (4) Effect of proposed development on heritage significance The consent authority must, before granting consent under this clause in respect of a heritage item or heritage conservation area, consider the effect of the proposed development on the heritage significance of the item or area concerned. This subclause applies regardless of whether a heritage management document is prepared under subclause (5) or a heritage conservation management plan is submitted under subclause (6). 1. However, the Applicant accepts that subcl 5.10(5)(c) does apply to the site as it relates to works that are proximate to a heritage item or HCA as follows: (5) Heritage assessment The consent authority may, before granting consent to any development: … (c) on land that is within the vicinity of land referred to in paragraph (a) or (b), require a heritage management document to be prepared that assesses the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. 1. It is therefore relevant, according to the Applicant, that at no stage in considering the original application did the Respondent require the Applicant to prepare a heritage management document, but instead relied on, and supported the findings of the heritage demolition report prepared by Mr Oultram (Ex B, Tab 16), in the Council's own internal referral reports prepared by Council officers contained in Ex 4 which, on page 21 at Tab 12, which states: "… The demolition report submitted with the application, as reviewed and supported by Council's heritage officer, concludes that the existing building, its grounds and any structures thereon, have little or no heritage or conservation value and therefore demolition is supported." 1. Additionally, at Tab 18, a heritage report prepared by the Council's heritage officer states: "The application is generally acceptable as it complies with the relevant statutory and policy documents and would have a satisfactory impact." 1. In essence, the Applicant's position is that the proposed development complies with the numerical controls related to height and floor space ratio in the WLEP, satisfies the objectives for the desired future character and streetscape for the Wallaroy Precinct in the WDCP, and is generally consistent with both the qualitative and quantitative principles and controls in the ADG. Furthermore, the impact of view loss was considered by the Council in a manner that was consistent with the planning principle in Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity), and the application was supported by Council officers. Subsequently, the amended plans have further ameliorated the impact on views. 2. It is agreed by the parties that the flagpole shown on the north elevation exceeds the maximum permissible height, however exemptions are provided in the WLEP for flagpoles when assessing building height. 3. The Respondent considers the amended plans show a development that remains inconsistent with the desired future character of the Wollaroy Precinct which is found at B1.4.2 of the WDCP, and which states that: "Development adjacent to the Woollahra Heritage Conservation area must suitably respond to the significance of the HCA." 1. The significance of the Woollahra HCA is set out in Part C2.1 of the WDCP. C2.2.2 describes the high aesthetic significance and visual complexity of the HCA which is derived from: "• The variety of significant public and private building types; • The variety of significant architectural styles and scales within the range of building types; • The complex and varied subdivision pattern; • The significant intact and remnant landscape; and • The municipal parks and small reserves. The Woollahra HCA contains aesthetically contributory items of architectural excellence dating from all the major periods of its development, many designed by eminent architects of their period." 1. The Respondent considers 'Fenton' to perfectly fit this description, as its architect Robin Dods is considered eminent, and the property is listed as a state heritage item. 2. The objectives for the Woollahra HCA include, relevantly: "… O2 – To acknowledge and conserve the heritage significance of the Woollahra HCA, including the character of individual precincts … O5 – To provide controls to protect the identified heritage values and significant character of the Woollahra HCA O6 – To encourage contemporary design that responds appropriately to that character of the Woollahra HCA … O9 – To enhance amenity and heritage values within the Woollahra HCA." 1. The objectives of the Desired Future Character for the precinct includes: "O2 – To establish a development transition from the large residential flat buildings and lots at New South Head Road and Edgecliff Road to the smaller dwelling houses situated on the slopes. … O7 – To ensure that development on the western boundary of the precinct does not have an adverse impact on the heritage significance of the adjoining Woollahra Heritage Conservation area." 1. According to the Respondent, the proposed development adversely impacts on the heritage item known as 'Fenton' and, consequently, adversely impacts on the Woollahra DCP. Expert evidence 1. It is commonly held between the heritage experts that the proposed development would not impose adverse impacts on the heritage items at No.12 and No.14 Albert Street, and the former post office at Nos.287-289 New South Head Road. Furthermore, they agree that there are no adverse impacts on 'Fenton' in relation to overshadowing, and further that the existing view to the harbour at Watson's Bay from the eastern bedroom is unaffected by the proposed development. 2. The experts also agree that the term 'setting' is best defined by reference to Article 1.12 of the ICOMOS Burra Charter which is in the following terms: "Setting means the immediate and extended environment of a place that is part of or contributes to its cultural significance and distinctive character. Setting may include structures, spaces, land, water and sky, the visual setting including views to and from a place, and along a cultural route; and other sensory aspects of the setting such as smells and sounds. Setting may also include historical and contemporary relationships, such as use and activities, social and spiritual practices, and relationships with other places, both tangible and intangible." 1. This is particularly relevant as the dispute between the experts relates to how the setting and curtilage of 'Fenton' may be impacted by the proposed development. Mr Brooks is of the view that the cultural significance of 'Fenton' arises from its connection to the original architect and owner, 'Robin' Dods, and in the choice he is said to have made to site 'Fenton' to gain panoramic views of the harbour. 2. In the joint report, and later in Exhibit 7, Mr Brooks provides an excerpt from a book authored by Mr Robert Riddel on Robin Dods' selected works as follows: "No doubt there had been serious consideration about what sort of house to build and where to build it. Since Dods's arrival in Sydney he had lived first in Darling Point and then Woollahra, eventually finding suitable land after nearly five years of searching… Fenton was built on the rear portion, which was connected to Albert Street by an access laneway about five metres wide. This created a site with a panoramic view towards Double Bay and Darling Point, looking out over the grounds of Edgecliff House, which Dods believed would be preserved" 1. To Mr Brooks, this nexus between 'Fenton' and its panoramic view of the harbour is important as it establishes what he describes as an 'expanded curtilage' beyond the property and its immediate surrounds. In support of this term, the Respondent tendered Exhibit 8 'Heritage Curtilages', a document published by the Department of Urban Affairs and Planning. While the Court was not further assisted by reference to this document, I understand the section titled 'Expanded Heritage Curtilage' on page 7 is most relevant: "There may be circumstances where the heritage curtilage may need to be greater than the property boundary…Depending on the topography, an expanded curtilage may be required to protect the landscape setting or visual catchment of a heritage item. In defining an expanded heritage curtilage, it is important to identify the prominent observation points from the significant item can be viewed, interpreted and appreciated. Other factors to be considered are: • Views to and from the heritage item • The possible need for a buffer area between the curtilage and the adjoining land • The visual and historical relationship between the item and its environs" 1. This expanded heritage curtilage, Mr Brooks argues, should encompass views of the harbour and of the sky which is consistent with the Burra Charter's definition of 'setting'. As the proposed development would partly obscure the view from 'Fenton' to the sky, Mr Brooks considers this to be an adverse impact on the heritage significance of 'Fenton'. 2. While Mr Oultram accepts that 'Fenton' would have originally had views of the harbour, he considers it a long bow to draw to suggest that Dods would have expected the sites between 'Fenton' and the harbour view would not be developed, especially as the interwar flat building was becoming more common at the time. 3. Furthermore, it is a consistent pattern in the area for historic houses that were part of larger estates to be later broken up, and for the original views once enjoyed to be eroded as was the case on Edgecliff Road, with the construction of 'Chesterfield' and 'Karoola'. Together, these developments eroded the panorama that may have existed and have contributed to the loss of any connection between 'Fenton' and the harbour view. Mr Oultram believes that any views directly north had disappeared by 1943, given the development of 'Chesterfield' and the existing house on the subject site. 4. Mr Oultram considers the reference to the sky in Article 1.12 of the Burra Charter to more generally apply to views of a property, rather than views from it. He cites an example of a church on a hill, where a spire may be visible against the sky, instead of the view from the church outward in which an unobstructed sightline to clear sky is less meaningful. 5. In the joint report, Mr Oultram sets out responses to a series of questions derived from the NSW Heritage Manual, in which he accepts that the proposed development will be visible from the driveway of 'Fenton' and the rear verandah and will only affect views of the sky. His responses also record his view that the works are outside the curtilage of 'Fenton' which he describes as being defined by the lot boundaries which will be maintained. 6. As it was a matter of submissions during proceedings, I record here that it is Mr Brooks' view that the existing house on the subject site has heritage value. In the joint report, Mr Brooks states that: "... the subject house and the interwar flats to its west could well qualify as a contributory items [sic] in the Woollahra HCA, were it not for an earlier decision by Council to exclude them." Consideration 1. The Applicant submits that in relation to the matters set out in Contention 1 and relatedly at [43], I should be guided by the decision in Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 which, in Mr Hemmings' submissions, sets out the limits of decision-making, particularly for Commissioners of the Court. In essence, Mr Hemmings considers the issues that deserve consideration are principally limited to those joined between the parties. 2. Specifically, it is Mr Hemmings' submission that as the Respondent does not press that the demolition of the existing dwelling is a matter of public interest; I should not stray in to consideration of the same. 3. I note that the Court is required by s 4.15 of the Environmental Planning and Assessment Act 1979 (EPA Act) to take into consideration matters set out in: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. 1. Furthermore, s 39 of the Land and Environment Court Act 1979 (LEC Act) sets out the powers of the Court on appeal, including Class 1 appeals in the following relevant terms: … (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest. … 1. For the reasons stated at [14], I do not consider the heritage significance of the existing dwelling on the site to be a relevant consideration in this appeal, nor do I regard Mr Brooks' own assessment of the possible contributory value of the subject site which appears at [43] to carry any weight. The Court is not being asked to assess the heritage significance of either the subject property, or 'Chesterfield'. I am aware that Woollahra Municipal Council has appropriate processes in place to assess the heritage significance of properties and to recommend them for addition to Schedule 5 of the WLEP when adopted. 2. However, in my view, it is appropriate for the Court to consider whether the proposed development is consistent with the objective of cl 5.10 of the WLEP and whether, being in the vicinity of a heritage item, and adjoining a HCA, it would affect the heritage significance of the heritage item or HCA concerned, pursuant to cl 5.10(5) of the WLEP. 3. While there is no question that 'Fenton' is a fine work of 20th century Australian architecture, there is also no doubt that its original setting has been compromised by development on Edgecliff Road. Possibly as early as 1943, the visual connection between 'Fenton' and the panorama it once might have enjoyed was compromised by development to its north, on Edgecliff Road. 4. While Dods may have envisaged a house set high on the Edgecliff rise with a view of the harbour, subsequent development in the vicinity of 'Fenton' has clearly all but removed any panorama that it once enjoyed. A remnant of the panorama that Dods' may have once enjoyed can be seen from the eastern window of a bedroom located in the north eastern corner of 'Fenton'. It is agreed by the experts that this view of the harbour will be unaffected by the proposed development. 5. Perhaps in response to the development along Edgecliff Road over a number of years, a row of mature trees provides screening to the northern boundary of 'Fenton' and it is agreed that the proposed development will be masked by this screening. This screening, combined with the close proximity of the northern boundary to the 'Fenton' house serves to further enclose the property and throw its focus on to the entry court to the south, in the middle of which stands a grand and mature tree, set in the centre of a circular drive. It is from the driveway and southern entry court that the full elevation of 'Fenton' can be seen. 6. Views from this approach are included in the 'Report on visual impacts on the setting of Fenton House', prepared by Dr Richard Lamb dated June 2019 (Ex B, Tab 9). In particular, views 2, 3 and 4 show that the proposed development will be visible at the end of the battle axe driveway, and then diminish behind the ridge of the roof as one approaches the house closer. In my view, it is relevant that this primary approach from Albert Street affords a visitor a view of the roofline of 'Fenton' against the sky. 7. Mr Brooks' strong view is that the most adverse impact on 'Fenton' likely to result from the proposed development is in the portion of sky that it will obstruct from 'Fenton'. During the site view, Mr Brooks took me to a location at the lower level of the site in the north east corner and directed my attention to the clear view of the sky from that position. 8. While I accept that there is a view from 'Fenton' to the sky over the subject site, and over the grounds of 'Karoola' to the east, I prefer Mr Oultram's evidence as to when consideration of the sky as a component of a heritage setting may be best applied as set out as [41]. If 'Fenton' had a strong visual presence from outside its site, and if it could be said that its profile was seen against the sky as being an important element, it may deserve some consideration. 9. However, 'Fenton' is not generally visible from outside its own site. Being on a battle axe block, it goes virtually unseen from Albert Street. Furthermore, a close reading of the various heritage studies and assessments which appear in evidence in Exhibit 4 (Tabs 19, 20, 21, 22 and 23) does not include any reference to a view that would support Mr Brooks' assertion that the setting of 'Fenton' relies on its connection to a view of the harbour. 10. I consider it relevant that the view to the water remains unaffected, and that from many aspects within the 'Fenton' property, the proposed development will not be visible. For this reason I am satisfied that the impact of the development will not adversely impact the property known as 'Fenton'. 11. However, before consent can be granted, there are a number of matters raised in the contentions, and in public submissions that are also required to be satisfied. State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65) 1. Where an application relates to residential apartment development, cl 50(1A) of the Environmental Planning and Assessment Regulation 2000 requires that the application must be accompanied by a statement by a qualified designer, defined at cl 3 as a person registered as an architect in accordance with the Architects Act 2003. The statement must conform to the provisions of cl 50(1AB), which include attestations in relation to cl 28(2)(b) and (c). I am satisfied that the statement found at Exhibit B, Tab 20 is in a complying form. 2. There are two aspects which appear to vary from the design guidance contained in the ADG, relating to the number of car parks provided, and the side setbacks. 3. In relation to the number of car parks, the parties are agreed that, as Woollahra Municipal Council chooses to express car parking requirements as a maximum, and not a minimum, for residential development, the proposal is consistent with the WDCP in preference to the greater number that would be required by the ADG. 4. In relation to the side setbacks, which are a particular concern of residents in 'Chesterfield', the Respondent advises that due to the narrow site, parties agree that it is appropriate to apply the setbacks in Part B3, Figure 5B of the WDCP in preference to the separation required by Objective 3F-1 of the ADG, which is stated to be for the purpose of achieving reasonable levels of external and internal visual privacy. The statement by the architect at [59] states that reasonable visual privacy has been achieved by re-orientating a portion of the building in the amended plans, and fitting privacy screens and obscure glazing to side-facing rooms. 5. There is a breach of the side setback to the east, arising from the re-orientation of the building. However as this is towards the 'Karoola' building, which itself is well setback from the boundary, the parties are agreed that this breach is acceptable, and I concur with this position. 6. Clause 30(2) of SEPP 65 requires the consent authority, or the Court on appeal, to be satisfied that the proposed development demonstrates that adequate regard has been given to the design quality principles, and the objectives specified in the ADG for the relevant design criteria. For the reasons above, I am satisfied that adequate regard has been given to the ADG. Floor Space Ratio 1. In his submission on behalf of residents (Ex 2, Tab 3, folio 230), Dr Zanardo asserts that the 'open entry terraces' do not meet the definition of a terrace as found in the ADG and so do not qualify as an exclusion under the WLEP definition of gross floor area. In support of his position, he cites the decision in Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 in which Commissioner Morris found, at [60]-[61] a breezeway of 2m in width to function as, and to be, internal floor space because it was within the internal face of the external walls of the building. 2. The WLEP defines gross floor area in the following terms: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4m above the floor… … but excludes: … (i) terraces and balconies with outer walls less than 1.4 metres high 1. While the parties are agreed that the FSR calculation is compliant, given it is a jurisdictional matter on which the Court must be satisfied, the Applicant addressed the issue by reference to GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521. In her decision, at [31], Commissioner O'Neill formed the view that a corridor, which was open at both ends, did not form part of the GFA. This was explained, in part, because "the corridor will be wet during inclement weather by rain blown along the gap, the walls contained the corridor function as external walls and so the corridor cannot be characterised as internal floor space". 2. Drawing DA12 Rev F, Section AA shows that the open entry terrace on each level of the proposed development is similarly open to the elements, and is contained to the south, by a balustrade and a low planter bed that is less than 1.4m in height. Furthermore, I am satisfied on reading the floor plans for each level, that the external wall of each level can be said to be formed by the lift and stair shafts and the external wall of the two apartments to which entry is gained from the open entry terrace. 3. For the reasons stated above, I accept, agree with, and adopt the Applicant's submissions in relation to the calculation of the FSR in that the area labelled 'open entry terrace' on each level of the plans, and likewise, the area labelled 'breezeway entry' does not meet the definition of gross floor area (GFA) in the WLEP. SEPP Infrastructure 1. As the site is located above the Eastern Suburbs rail corridor, cl 86 of the State Environmental Planning Policy (Infrastructure) 2007 (SEPP Infrastructure) requires a consent authority, or the Court on appeal, must not grant consent without the concurrence of the rail authority for the rail corridor to which the development applies. 2. Clause 87 of the SEPP Infrastructure also requires that the Court consider guidelines that are issued by the Secretary, and must be satisfied that appropriate measures will be taken to ensure certain noise levels will not be exceeded. 3. I have considered the NSW EPA Rail Infrastructure Noise Guideline (Ex 4, Tab 16), and the Acoustic Assessment prepared by Acoustic Logic dated July 2019 (Ex 4, Tab 17) and I am satisfied that appropriate measures will be taken to ensure vibration impacts will comply with EPA guidelines. I am also satisfied that, with reference to the conditions of consent, that appropriate measures will be taken to ensure certain noise levels will not be exceeded. 4. I am also satisfied, on the basis of evidence at Exhibit 4, Tab 10, and in consideration of the agreed conditions of consent, that the rail authority has granted concurrence as required by cl 86 of the SEPP Infrastructure. Desired future character 1. The proposed development complies with all of the development standards in the WLEP and is consistent with the design principles and the design guidance contained in the ADG. It is consistent with the WDCP in relation to car parking provision, and side setbacks. Furthermore, the proposal is contemporary in its design, and as the height of the proposal is somewhere between the height of 'Chesterfield' and 'Karoola', it could be said to assist in the transition from large residential flat buildings and lots at New South Head Road and Edgecliff Road to the smaller dwelling houses situated on the slopes. 2. Consequently, and considering all of the evidence before me, I am satisfied that the proposed development is consistent with the desired future character of the Wollaroy Precinct and, for the reasons set out earlier, will not adversely impact on the heritage significance of the Woollahra HCA. View loss 1. The loss of views as a result of the proposed development was a consistent concern in public submissions, and so can be said to be captured within Contention 4 which states that the development application should be refused having regard to the matters set out in the submissions which Council has received. 2. The original assessment undertaken by Council officers is contained in Exhibit 4, Tab 12 and includes an assessment of public and private views in a manner that is consistent with the four-step process in the Court's planning principle on views, established in Tenacity. The assessment concludes that there will be an impact on views for residents of neighbouring properties, and the views lost will include views of water, the Sydney city skyline, and the Sydney Harbour Bridge. This is consistent with my assessment following the onsite view. 3. The Applicant considers the proposed development to strike an appropriate balance in the sharing of views from this elevated location in Edgecliff and relies on a Visual Assessment Report, prepared by Dr Richard Lamb dated May 2019 (Ex B, Tab 8) in which the height and bulk of the proposed development is overlaid on photos of taken from a number of defined locations. 4. Mr Hemmings, for the Applicant cites Senior Commissioner Roseth (as he was then) in Tenacity, at [25] who defined 'view sharing' as being "invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment". According to the Applicant, the architect has designed the building to share views, including amendments to 'rotate' the northern portion of the building in plan, in an easterly direction so that the impact on views from the eastern side of 'Chesterfield' is reduced. 5. In its original assessment, the Council officer states, correctly in my view, that "any building form fully compliant with Council's envelope controls and in particular the height control would impact on these existing views" (Ex 4, Tab 12, page 31). Furthermore, the officer observes that in many cases, existing views enjoyed by residents of 'Chesterfield' and 'Karoola' have resulted from the undeveloped nature of the subject site. 6. An outline of the envelope of a fully compliant building is included in Dr Lamb's images, and which assist to compare the bulk, height and scale of the proposed development against the bulk, height and scale of what is theoretically permitted by the controls. 7. Dr Lamb's report was not contested by the Respondent, although a resident, Mr Les Simmonds, did provide the Court with a submission during the onsite view that challenged Dr Lamb's methodology, specifically querying the focal length used by Dr Lamb. In response to Mr Simmonds' submission, the Applicant tendered an earlier report (Ex C) prepared by Dr Lamb that includes a detailed description on this point, and is reproduced, in part as follows: "…Because of the overall size of the site and its width in some of the critical views, in which a standard lens for landscape imagery, for example, a 50mm focal length, would not have provided the field of view sufficient to take in the horizontal and in some cases the vertical field of view occupied by the proposal, a 35mm fixed focal length was used." 1. In considering the impact of the loss of views, I am assisted by the detailed assessment made by the Council Officer at the time of the original application and by Dr Lamb's visual assessment report. It is commonly held between the parties that the amended plans further ameliorate the adverse impact on neighbour's views when compared to the original application assessed, and supported, by the Council. 2. In Tenacity, Senior Commissioner Roseth (as he was then) outlines the final step in considering view loss, and that is to assess the reasonableness of the proposal that is causing the impact. As he puts it: "… 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." (at [29]) 1. After considering all the evidence before me, I consider it relevant that the proposal fully complies with the development standards applicable to the site and I am satisfied that a more skilful design would not provide the Applicant with the same development potential or amenity. Furthermore, it is my considered view that the design before the Court has considered the impact on the views of neighbours and achieves a reasonable balance in sharing those views. Orders 1. The Court orders that: 1. The appeal is upheld. 2. Development consent is granted for DA558/2016 for the demolition of an existing dwelling and ancillary structures, and construction of a new 9-storey residential flat building containing 15 units including basement parking, swimming pool and ancillary site and landscape works at 448 Edgecliff Road, Edgecliff, subject to the conditions of consent set out in Annexure A. 3. The exhibits are returned except for Exhibits D, 2 and 9. …………………… T Horton Commissioner of the Court Annexure A (707 KB, pdf) ********** Amendments 23 August 2019 - Correction to Legal Represenation - Applicant's Counsel with the addition of Ms Hammond 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: 23 August 2019