Land and Environment Court New South Wales

• Medium Neutral Citation: Murdoch v Woollahra Municipal Council [2014] NSWLEC 1165
• Hearing dates: 8 August
• Decision date: 11 August 2014
• Jurisdiction: Class 1
• Before: Moore SC

Decision

See (57) to (59)

• Catchwords: MODIFICATION OF DEVELOPMENT CONSENT: impact on views; privacy
• Legislation Cited: Land and Environment Court Act 1979
• Cases Cited: Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140
• Category: Principal judgment
• Parties: L Murdoch (Applicant); Woollahra Municipal Council (Respondent)
• Representation: Mr M Staunton, barrister (Applicant); Mr P Rigg, solicitor (Respondent); Pikes & Verekers Lawyers (Applicant); Norton Rose Fulbright Australia (Respondent)
• File Number(s): 10356 of 2014; 10379 of 2014
• Publication restriction: No

Judgment

1 SENIOR COMMISSIONER: These two appeals concern applications to modify a development consent for substantial additions and alterations being undertaken to premises at 93 Victoria Road, Bellevue Hill.

2 The separate modification applications first, in matter 10356 of 2014, relates to a proposal for alterations to a garage structure and a condition relating to the use of a fireplace in the chimney attached thereto in the redeveloped principal building on the site.

3 The second appeal, matter 10379 of 2014, relates to a number of conditions attaching to various elements of the landscaping proposed for the site, those conditions being primarily ones that fix heights of particular trees at nominated locations, they being trees proposed to be planted as part of the landscaping plan for the premises.

4 It is convenient, at the commencement of this decision, to note two matters. The first is that, consistent with the efficient undertaking of the proceedings, evidence in each proceeding was agreed to be evidence in the other to the extent that it was relevant. Second, each of the proceedings commenced under a conciliation conference process established pursuant to s 34AA of the Land and Environment Court Act 1979.

5 With respect to the proceedings concerning the garage and the chimney, at the conclusion of the conciliation proceedings, the applicant had given certain indications of conditions of consent with respect to the two elements contained in that proceedings that were acceptable to the applicant. The council says, as I understood it, with respect to those undertakings that:

• First, with respect to the landscape treatment and retention of the existing setback to the garage, that the council did not wish to press any further objection but left it to me to determine if that setback and proposed landscape treatment was acceptable under the circumstances; but
• Second, with respect to the chimney issue, the issue being related to smoke and small particulate emissions if the chimney were to be used for a solid fuel burning fireplace, that was capable of being addressed by conditions of consent requiring the installation, maintenance and operation of pollution control equipment on that chimney - there being an agreed condition to that effect, the council raised no objection to that condition resolving that issue in that set of proceedings.

6 With respect to the trees, I had the benefit (during the commencement process of the conciliation conference) of undertaking inspections at the relevant properties of four of the objectors, but I did not visit a fifth property (for reasons that I will later outline). The properties that were visited, in numerical (but not visit sequence) order, were 91 Victoria Road, 95 Victoria Road, 99 Victoria Road, and 101A Victoria Road. Although objections were raised in a limited respect by residents of 93 Drumalbyn Road, from whom I heard short informal oral evidence during the course of the preliminary site submissions, that property was not inspected.

7 As is customarily the position with respect to conciliation processes, the objectors were given the opportunity to make submissions prior to the commencement of the conciliation process and during the course of the site inspection. Although, at that time, those submissions were not formally evidence in the proceedings, as the conciliation was unsuccessful and the matter has proceeded to a determining hearing in each matter with respect to all matters (other than those relating to the fireplace), the submissions - by agreement between the parties - became touched by the philosopher's stone embedded in the statute and transmuted into evidence in the proceedings. As a consequence, I take into account and respond to each of those objections in turn.

8 The conciliation process with respect to the landscaping has resulted in some further significant modifications to the proposed landscaping, modifications that are responsive to the concerns that are raised by a number of the objectors.

9 I propose, rather than going through the planning controls and the like in detail, to go through the issues that were raised by the objectors; the responses that have now been incorporated in the landscape plans; and with respect to one particular matter - that is the extent to which a view corridor generally to the east from 91 Victoria Road is impacted - the remaining significant contention that is argued by the council ought to involve a condition that goes further than the conditions proffered by the applicant both in the proposed conditions and in the amended landscaping and other plans proposed to be incorporated into the development consent.

10 With respect to all of those matters, other than the extent to which the tree which is labelled tree C will potentially impact in the view corridor from 91 Victoria Road, the council says to me (as I understood the submissions that were made by Mr Rigg on behalf of the council) that the council acknowledges the nature and extent to which the applicant has responded to the concerns of the objectors, but that the council says to me that it is appropriate that I determine whether those responses are appropriate or not under the circumstances.

11 At the end of the short hearing of the matter that took place at the conclusion of the conciliation conference - late in the afternoon of Friday 8 August - I indicated to the parties that I would give an indication to enable the preparation of finalised conditions of consent on two matters.

12 In effect, that was whether the overall bundle of outcomes that were proposed by the applicant were appropriate responses to the matters raised by the objectors, in my assessment and, second, whether the additional condition that the council pressed was required (to deal with the possible future canopy spread of the tree that is labelled tree C into the view corridor toward the east from 91 Victoria Road) should be imposed or not.

13 At that time, because of the lateness of the hour, I indicated that I would state the outcomes and provide reasons this morning - these being the reasons for my conclusions that:

• First, the overall response by the applicant to the concerns raised by the objectors is both appropriate and acceptable: and
• Second, under the circumstances, it was not appropriate to require a further condition to be attached to deal with the potential for canopy spread of tree C into the view corridor from 91 Victoria Road.

14 It is convenient, for the purpose of setting out these reasons, that I will deal with the matters raised by the objectors, starting with those raised by the residents of 93 Drumalbyn Road, premises that were not inspected during the course of the site inspection.

15 In part, the objections that were raised by those residents arise from the fact that some exhaust venting panels on the side of a structure on the site are now to emit hot air and that required modification to the landscape treatment in front of them to incorporate heat tolerant planting in the immediate vicinity and then further, less heat tolerant but slightly higher growing planting immediately beyond that heat tolerant planting.

16 As I understood the submissions that were made to me, in part the complaint was about the changes to the structure and the nature and use of the vents contained therein.

17 As I indicated during the course of the submission on that point, that was not a matter that falls within the scope of these proceedings - the extremely limited nature of the scope of these proceedings with respect to those vents relates to the landscaping to be planted in front of them, not the nature, use or design of the vents themselves. This did not require inspection.

18 I am satisfied, on the evidence that was given to me by the two arboricultural/landscaping witnesses who gave evidence during the proceedings, that the small heat tolerant plants that are proposed immediately in front of those vents are appropriate. Those experts, Ms Sonter for the applicant and Ms Woodman for the council, agreed that some additional landscaping specification could take place in front of those lower growing, heat tolerant plants to ensure appropriate screening was achieved for the property at Drumalbyn Road.

19 I am satisfied that that is an appropriate response to that issue and that further intervention by me is not required.

20 I now turn to the view impact concerns of landscaping matters that were raised by the occupants of four residences in Victoria Road.

21 It is convenient to commence with those in reverse numerical order, commencing with the objections that were raised by the residents at 101A Victoria Road. Their concerns were the potential substantial obliteration of their view from their balcony and from a study area (that are in the vicinity of their principal living spaces) of Shark Island and the water and vessels moored there upon between Shark Island and the adjacent shore in the direction of their property, together with the loss of the harbour view beyond. That view is, to some extent at the present time, constrained by the canopy of a tree on the site that is to be retained, a tree that has been identified as tree 1 on the landscape plan.

22 Tree C proposed to be planted at its original proposed upper height, would have had a canopy that significantly intruded in and potentially obliterated that view.

23 As a consequence of the discussions, the resolution has been reached that tree C will be maintained at a maximum canopy height designated by an RL enumerated on the plans and that that enumerated and fixed height will be determined and maintained as at 14 November on an annual basis - that being an appropriate time to ensure that any pruning that might be required is undertaken prior to those parts of the early summer and summer period when the use of the outdoor living spaces on relevant adjacent properties is likely to be maximised.

24 The effect of limiting the tree to that height has the effect of preserving virtually the entirety of the views towards Shark Island from 101A Victoria Road, there being an intrusion at the present time by the leading edge of a roofline beyond tree C, between tree C and that substantial view.

25 I am satisfied either that there will be no impact on the relevant view from 101A Victoria Road, or if there were to be an impact on the view, then that impact would be so minimal as to not warrant further intervention - particularly in light of the discussion by my predecessor, Roseth SC, in Tenacity Consulting v Warringah Shire Council [2004] NSWLEC 140 about the difficulty of preserving views over side boundaries and the like - the view from 101A Victoria Road being a view quite clearly over the side boundary of that property, over the side boundary of the adjacent property at 99 Victoria Road and then into and beyond the side boundary of the applicant's property.

26 The next views are those that arise with respect to 99 Victoria Road. The position with the views from the living areas and the outdoor deck attaching to them, with respect to the views to Shark Island, is the same as the question arising for those views from 101A and the conclusion that I have reached with respect to those views from this property are identical to those with respect to 101A and do not require to be repeated.

27 The second element of the views from this property, however, required a more flexible and creative response by the applicant - a response that the applicant has given. This arises because the second view that is of importance to the residents of 99 Victoria Road is the view from a location known as Foy's Lookout, a location that is at the northern end of the garden of that property, an approximately semicircular area enclosed by at least in part a low stone balustrade, and entirely by a semicircular Buxus hedge pruned to approximately waist height and with a flagged sandstone bench, some 400 or so millimetres wide, at knee height immediately within that and then - back towards the house - a sandstone flagged area with an outdoor dining setting of a substantial table and a number of chairs.

28 It was the evidence of the occupants of those premises that they regularly sat there; that it was their primary outdoor recreation space (in conjunction with their swimming pool); and that they entertained there at reasonable frequency.

29 The views that were enjoyed by those sitting at that location, using the chairs located with the dining table, over the top of the Buxus hedge were extensive views almost due north from that location. They wished to retain those views, despite the difficulties discussed in Tenacity of retaining views from seated locations.

30 The concerns that were raised by the applicant were not related to the enjoyment of the sitting views, but the likelihood that if the sitting views were to be retained without any modification to the vicinity of Foy's Lookout, then a person standing with their knees immediately adjacent to the sandstone bench within the Buxus hedged area would be able to look down and into the eastern terrace of the applicant's property - the eastern terrace being proposed to be the primary outdoor entertaining area associated with the applicant's premises.

31 The tree that was primarily of concern both to the objectors (as to its intrusion in their seated view line) and by the applicant (in his desire to have its canopy act as a visual shield to the eastern terrace) was identified as tree G in the landscape plan.

32 As a consequence of the discussions, the objectors have been left with a choice. The choice is one that can be simply described as this:

• if an area within Foy's Lookout, not currently occupied by the outdoor dining setting, is isolated from being a trafficable area so that a person using Foy's Lookout cannot approach the hedge to a sufficient extent to be able to view the east terrace on the applicant's property, then the tree, tree G, will have its maximum height (again as at November 14 in any year) required to be at a level that will not impact on the seated views from that outdoor dining setting; but
• if the objectors do not agree to that isolation of that small section of Foy's Lookout, a section in my observation that would not significantly (if at all) impact on their enjoyment and use of that lookout, then the tree will be permitted to have its canopy fixed at a maximum higher level to ensure that a person standing with their knees adjacent to the sandstone bench on the lookout will not be able to view into the terrace to the east of the applicant's dwelling.

33 The applicant has offered to meet the reasonable costs of installing such isolating measures for that purpose at Foy's Lookout as might be considered appropriate by the objectors living at those premises and during the course of the conciliation process, conditions were settled that reflected that position.

34 I am satisfied that providing the objectors at 99 Victoria Road with the opportunity to preserve their outlook directly over and only impacted by the Buxus hedge when using the seated outdoor dining facility is an appropriate response as is the triggering of an interference with that view, if those objectors do not accept the offer of the applicant to construct the modest constraining device necessary to prevent such overlooking.

35 I turn to the residence at 95 Victoria Road. The concerns for that property, as we inspected it (in the absence of the owner but in the presence of her legal adviser), were any constraining of her sense of openness to the sky. I am satisfied (and, indeed, I understood that her legal representative accepted) that there would be no adverse impact on her property in that sense and therefore I need not detain myself further on that point.

36 I now turn to the area of view impact that was the subject of contest as to the possible outcome between the applicant and the council. That concerns the dwelling at 91 Victoria Road.

37 We had the opportunity to inspect the views from those premises at a number of locations. In brief, they were:

• First, from an entrance terrace area of comparatively narrow confine, immediately adjacent to the entry to the applicant's property;
• Second, from a kitchen window in the vicinity of that entrance terrace area;
• Third, from the outdoor ground level decking immediately in the vicinity of the doors from the objector's primary living areas; and
• Finally, from the master bedroom area immediately above those primary living areas.

38 It is fair to say that the objection with respect to the entrance terrace and the kitchen window arise from, first, a tree numbered B on the landscaping plan, and, second, a tree identified as tree D, a Japanese maple, on the landscaping plan.

39 It is my assessment that, to the extent that there is any view impact of those trees, that view impact is certainly no greater than (and in fact might potentially be less than - given that the Japanese maple is a deciduous tree) the view impact of the previously existing mango tree that had been planted generally in the vicinity of proposed tree D and which the applicants had proposed to retain (had it not suffered an unfortunate arboricultural demise whilst it was being stored for the purposes of replanting at its location).

40 To the extent that there may be overshadowing from tree B, that, to my mind, is not an overshadowing of primary living areas and that does not warrant further consideration. I am satisfied that to the extent that there were objections based on the entrance terrace and the kitchen window, they are without sufficient foundation to require any intervention.

41 The position with respect to the views from the outdoor deck area are somewhat different. They needed to be contemplated in the context that the resident of that property indicated that he had proposals to redevelop the property and, as was submitted by Mr Staunton, counsel for the applicant, during the course of closing submissions, any reasonable redevelopment that might be undertaken of 91 Victoria Road would, in effect, flip the development so that the living spaces were on the upper level (primarily where the present master bedroom is located) and the bedrooms put on the lower level.

42 It is fair to say that the view that is available from the master bedroom is spectacular. It is about a 180 degree unconstrained view running from Bondi Beach round to Point Piper in an uninterrupted arc. It is, one could only say, a magnificent setting and would provide a magnificent setting for any living space in that dwelling. That, in my view, is a matter to which I am entitled to have regard, given that the occupant indicated his intention to consider redevelopment of the property.

43 However, if I be wrong in that consideration, I still turn to consider the question of the views from the outdoor deck area. For the ground level immediately adjacent to the primary current living spaces in that property, there are five observations to be made in that regard:

• First, to the west, that deck area is surrounded by a substantial hedge that entirely obliterates any views that might be had (if they were to be available) to the west and to the north west towards the harbour;
• Second, tree 3 that is currently on the applicant's property provides a significant impediment to any view directly toward the applicant's property. Despite the fact that landscape plans usually show trees to have perfectly round and symmetrical canopies around a perfectly positioned central trunk, I note that the landscape plan has the trunk slightly offset to the south but retains the perfectly symmetrical canopy beloved of computerised drafting programs. My observation during the course of the inspection of 91 Victoria Road was that tree 3 effectively entirely shields the view towards the applicant's property from this property.
• Third, the view corridor that is available becomes available subject to a number of constraints. The first constraint is the south western corner of the built form on the applicant's property together with the roofline that runs above it. That is the outer northern edge of the view corridor available from a standing location on the deck at 91 Victoria Road.
• The next constraint is the constraint that will arise from the planting of tree D, the Japanese maple, a deciduous species as I have earlier noted, and of tree E.
• Finally, tree C which is presently to be the subject of the earlier maximum height restriction as at 14 November in any year as earlier noted, has some potential, a potential said by Ms Woodman to be greater than Ms Sonter was prepared to conceded, to intrude into that view corridor.

44 I observe with respect to the view corridor:

• First, the width of the view corridor across the edge of the Japanese maple and tree E will in fact be modestly wider than that which was available had the mango tree which was not proposed to be removed being able to be replaced. That is clearly evident from the photographic material that has been placed before me during the course of the proceedings, plus my observation of the height poles of the then variously proposed tree locations during the course of the site inspections; and
• Second, the view from the outdoor deck area of 91 Victoria Road is an oblique one across a side boundary for the main part, constrained as I have earlier indicated by the south western corner of the applicant's dwelling.

45 For both the view corridor that is identified from this location (identified on a landscape plan in evidence as corridor A) and the view corridor (that has been identified as view corridor B) protecting the view corridor from Foy's Lookout, a maximum height plane has been defined - sloping downwards towards the outer boundaries of the applicant's property - that is required to be maintained and not intruded into as at 14 November every year.

46 I am satisfied, particularly with respect to view corridor A, that which is designed to provide some future viewing corridor toward the east from the outdoor living area of 91 Victoria Road both towards the vegetation in the vicinity of the golf course plus the headland and water beyond, that that is an appropriate response under the circumstances of it - being a view over a side boundary. I do not consider it is appropriate to impose additional lateral pruning conditions on the applicant with respect to tree C.

47 That concludes the necessary assessment that I must make with respect to all of the matters that are the subject of the landscaping condition application.

48 I now turn briefly to those matters with respect to which the second application is made - that is the application relating to the garage and to the chimney.

49 The chimney and its use are no longer matters of contention. They are capable of being dealt with by the agreed condition of consent requiring the installation and operation of pollution control equipment on that chimney to deal with smoke and small particulate material.

50 With respect to the garage, the original dispute between the council and the applicant concerned the extent to which the garage should be set back from the boundary with 99 Victoria Road. The present structure that is on the site that is proposed, at least in part, to be retained (or if not retained, reinstated at its present location), has a wall that is some 875 millimetres from the boundary with 99 Victoria Road. It has eaves that extend some 300 millimetres or so closer to that side boundary.

51 That which is proposed involves three changes to the nature of the relationship between the present garage and the property at 99 Victoria Road:

• The first change is that the roofline is proposed to be lowered by some 200 millimetres.
• The second change is that the present eaves extent is proposed to be removed so that there will be in effect a no-eaves structure located on the boundary.
• The third change, the change that is within the primary contention of the council and reflected in the objectors' concerns, is the extension, by several metres, of the existing wall line of the garage.

52 It was originally proposed by the council that the garage should be moved so as to comply with a 1.5 metre boundary setback and that there should be landscaping of a shrublike nature planted along that strip.

53 The position that is now proposed is that the existing location of the wall should be retained but that there should be trellises planted with star jasmine along that area. It was the evidence of Ms Sonter and Ms Woodman (and of the planners as I understood the evidence) that there would be difficulty in maintaining the planting - if the original planting regime were to have been retained - even at the greater setback. Second, that in a landscaping and visual impact sense, the proposed trellis and star jasmine treatment would be an appropriate response.

54 The area that will be impacted by the extension to the wall will not involve any significant impact on the view from 99 Victoria Road. The view is the view that is in the vicinity of Foy's Lookout. It is at an RL somewhat lower than the RL of the outdoor deck areas associated with the primary living areas in the house, and I am satisfied that to the extent that there is enjoyment of views (consistent with the evidence given by the objectors who own that property), that the dominant element (if not the entirety) of the eye drawing view from Foy's Lookout, is that which will be preserved by view corridor B (if those objectors accept the option in the condition of the sterilisation of part of the present trafficable area of Foy's Lookout).

55 I do not think, to the minor extent that there might be some additional late afternoon overshadowing of that lookout area, that that is a matter of significance. There is certainly no shadow diagram in evidence to take me to that proposition. The removal of the eaves and the lowering of the roof height would have, if there were to be such an adverse impact, sufficient (in my intuitive conclusion) ameliorating offsetting value to compensate for the extension to the wall.

56 As a consequence of all of those matters, I see no reason to interfere with or require the extension of the agreements that have been reached as to what might be described as the "best offer" position of the applicant in these proceedings.

57 The consequence is that, in each matter, the appeal will be upheld. In each matter, the relevant amendments will be made that (subject to the provision to me electronically of the revised conditions of consent in a fashion that (a) identifies the changes to the present conditions of consent, and (b) provides a copy of the consolidated revised conditions of consent) and I will make orders to give effect to the decision that I have given. Provided those documents are provided to me electronically (as .doc documents and not. docx documents) by the close of business today, those orders will be made dated today and, if they are provided after today, they will be dated the date of the provision to me.

58 The formal orders will be ones which consolidate the conditions of consent in the second set of orders, rather than requiring two sets of consolidated conditions sequentially involving different sets of consolidated conditions in each proceedings (as it would be a waste of the parties' time and money to require otherwise).

59 Second, and finally, I will note the amendment to the draft orders with the exhibits that are to be returned. I do not at this stage propose to delineate upon which file each retained exhibit will be retained. They will be retained relevant to the topic with which the file deals, but the formal order is that the exhibits other than Exhibits A, B, C, D, E, F, 3 and 5 are returned.

Tim Moore

Senior Commissioner

Decision last updated: 20 August 2014