Environment & Planning Law Case Study: Saada v North Sydney Council

We acted for Mr and Mrs Saada in this matter, and assisted our clients in preparing an appeal to the North Sydney Council Independent Planning Panel’s refusal of their rear alterations and additions.

Our clients had already reduced their development after consultation with Council, and in the face of a number of submissions opposing their development lodged by surrounding neighbours. Of primary concern was the proposed development’s impact on the heritage-listed building on the northern side boundary, specifically the view loss that would be experienced by one of three rooms that had formerly had partial iconic harbour views, but had for many years had this view obscured by dense bamboo.

View loss is assessed on a Planning Principle established by the Land and Environment Court in Tenacity Consulting v Warringah Council [2004] NSWLEC 140. It is important to note, however, that while view sharing is one of the goals of many local Council’s development control plans, total removal of a view from a living area can, in some instances, be reasonable. 1

In the present case, Acting Commissioner Maston decided that, as our client’s proposed alterations and additions fully complied with Council’s environmental planning instruments and development controls, this was one such case where permitting our clients to have an internal living area that would gain a harbour and city skyline view, at the cost of removing the same view across a side boundary from one of three living areas in the neighbouring unit, was not unreasonable.

Further, and contrary to the position taken by Council, Maston AC was compelled to assess the view loss as the site currently exists; in this case, this meant that effectively there was no present view. This is an important factor for home owners to consider if they have a dispute with their neighbours over a development proposal that may impact their views, particularly if there is existing vegetation that already affects their views.

From a heritage standpoint, Council submitted that the very design of the heritage-listed dwelling on our client’s northern boundary, which utilised bay windows to better capture the city skyline views, suggested that the view from the building was a contributor to its heritage values. While Maston AC was not able to explore this point more extensively due to a lack of evidence and the fact that this was not an initial ground of contention, the Acting Commissioner was satisfied that removing the view from one of a number of harbour-facing rooms would in no way impact on the heritage value of the building.

If you are about to submit a DA that will have impacts on the views of your neighbours over their side boundaries, or if you are concerned that your neighbour’s DA is unreasonably impacting on your views, get in touch with Hones Lawyers for legal advice on how your property rights can best be protected.

1 Goyer v Pengilly [2015] NSWLEC 54 per Pepper J at [34]

Peter Clarke – Solicitor – Environment and Planning Law team