Posted on April 5, 2013 by Lindsay Taylor

New Planning Principle for Public Domain Views Established by Land & Environment Court

In Rose Bay Marina Pty Limited v Woollahra Municipal Council & Anr [2013] NSWLEC 1046 the Land and Environment Court established a ‘planning principle’ for public domain views.

A planning principle is a statement of a desirable outcome or a list of appropriate matters to be considered in making a planning decision in order to to promote consistency. Planning principles are not legally binding and they do not prevail over a consent authority’s statutory or adopted plans and policies. However, the Court of Appeal in Segal v Waverley Council (2005) 64 NSWLR 177 held that consistency in the application of planning principles is clearly desirable.

A planning principle for considering the acceptability of the impact of a proposed development on the views enjoyed from private property in the vicinity of the development was established in Tenacity Consulting v Warringah SC [2004] NSWLEC 140; (2004) 134 LGERA 23.

The planning principle for public domain views adopted in Rose Bay Marina involves a two stage inquiry: the first factual, followed by a second, analytical.

Stage 1 – Investigation

The first stage involves several steps. Initially, the task is to identify the nature and scope of the existing views from the public domain, which should include considerations relating to:

  • the nature and extent of any existing obstruction of the view;
  • relevant elements of the view;
  • what might not be in the view;
  • whether the change permanent or temporary;
  • what might be the curtilages of important elements within the view.

The second step is to identify the locations in the public domain from which the potentially interrupted view is enjoyed.

The third step is to identify the extent of the obstruction at each relevant location. In this regard, the Court said that the impact on appreciation of a public domain view should not be subject to any eye height constraint.

The fourth step is to identify the intensity of public use of those locations where that enjoyment will be obscured, in whole or in part, by the proposed private development.

The final step is to inquire whether or not there is any document that identifies the importance of the view to be assessed (such as heritage recognition) or where the applicable planning regime promotes or specifically requires the retention or protection of public domain views. The Court made it clear, however, that the absence of such provisions does not exclude a broad public interest consideration of impacts on public domain views.

Stage 2 – Analysis

The second stage is the analysis of impacts. The Court said the analysis required of a particular development proposal’s public domain view impact is both quantitative as well as qualitative, but ‘this is not a process of mathematical precision requiring an inevitable conclusion based on some fit in a matrix’.

Planning controls or policies for the maintenance or protection of public domain views can create a presumption against the approval of a development with an adverse impact on a public domain view. This being so, the document must be properly considered and the legal status of the document is relevant in this regard.

In the absence of such planning controls or policies, the Court said ‘the fundamental quantitative question is whether the view that will remain after the development (if permitted) is still sufficient to understand and appreciate the nature of and attractive or significant elements within the presently unobstructed or partially obstructed view.’ Interestingly in this regard, the Court said that sometimes it may be essential to preserve partially obstructed views from further obstruction whereas in other cases this may be ‘mere tokenism’.

The qualitative evaluation requires an assessment of the aesthetic and other elements of the view, and the outcome of this process ‘will necessarily be subjective’. The framework for how the assessment is undertaken must be clearly articulated including clearly setting out the factors/considerations to be taken into account and the weight attached to them.

The relevant factors articulated by the Court included the following:

  • a high value is to be placed on ‘iconic views’

  • a completely unobstructed view has value
  • whether any significance attached to the view is likely to be altered, and if so, who or what organisation has attributed that significance and why they have done so
  • whether the present view is regarded as desirable and whether the change makes it less so and why
  • whether any change to whether the view is a static or dynamic one should be regarded as positive or negative and why
  • if the view attracts the public to specific locations, why and how that attraction is likely to be impacted
  • whether any present obstruction of the view is so extensive as to render preservation of the existing view merely tokenistic
  • on the other hand, if the present obstruction of the view is extensive, whether the remainder warrants preservation
  • does the insertion of some new element into the view by the proposed development alter the nature of the present view?

Finally, the Court said that ‘a sufficiently adverse conclusion on the impact on views from the public domain may be determinative of an application. However, it may also be merely one of a number of factors in the broader assessment process for the proposal.’