Form 40 (version 5) UCPR 35.1

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TITlE OF PROCEEDINGS

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3183066_096.doc

Land and Environment Court of New South Wales

1

Sydney

2016/00155592 and 2016/081558!3

RVA Australia Pty Ltd

Sutherland Shire Council

RVA Australia Pty Ltd, Applicant

Level 12 400 George Street

Sydney NSW 2000

AXGS/KEDS/3183066 - 8035 7918

.A

ric:hard lamb & associates

Court Land and Environment Court of New South Wales

Class

Case numbers

Applicant

Respondent

Prepared for

Prepared by

Subject

1 2016/00155592

2016/00155813

RVA Australia Pty Ltd

Sutherland City Council

Applicant

Or

Visual impacts

Expert report on visual impacts

Introduction

1. I have been appointed by RVA Australia Pty Ltd to provide independent expert opinion on visual impacts in the Proceedings.

2. I am a professional consultant specialising in view loss, visual impacts and landscape heritage matters. My CV is attached to this report.

3. In preparing this report I have been provided with, have read and agree to be bound to the Uniform· Civil Procedure Rules 2005 Division 2 and Schedule 7, Expert Witness Code. A summary CV is attached to this Report.

4. I have had regard to Council's Amended Statement of Facts and Contentions (Recreation Camp) (the Recreation Camp SoFC) with the lodgement date 1 July, 2016 in preparing this report. I have the following comments to make on the Contentions and Particulars in Part 2 of the SoFC that are relevant to my expertise.

5. I visited the subject land that includes the proposed development area (the Site) and observed the likely visual exposure of the proposed development to adjacent residences in Bundeena on 14 July, 2016.

6. Prior to my inspection of the site and the locality, I had been provided with the Statement of Environmental Effects (the SEE) prepared by-for Daintry Associates Pty Ltd and Appendix 3.17 of the SEE, the Visual Impact Report (VIR) also prepared by Brett Daintry.

1/134 Mllita,.Y Road, Neutral Bay NSW 2089

T 02 99530922 F 0299538911 M E

PO Box 1727 Neutral Bay, NSW 2089

www.richardlamb.com.au

7. Prior to visiting the site, I had also examined aerial imagery identifying the subject site and locality, road and zoning maps and underlying subdivision plan and am generally familiar with Bundeena.

8. Guided by the applicant and Mr Daintry, I visited the sites of each of the structures proposed in the application, the sites of which were marked with pegs and also the site of the parking area south of the refuge building and the proposed road access crossing the unmade Sussex Street, from a point adjacent to the 'Old Depot'.

9. Subsequent to visiting the Site, making observations from the site of each structure and taking photographs of what was visible from each structure, looking toward Bundeena, I visited, analysed and documented views from the adjacent streets, which might provide views of the proposed development. I also identified a number of residences that were partly visible from the proposed development site and made observations, to the extent that it is possible, of their potential views, from the street.

10. The purpose of this report is to provide my opinion with respect to the SoFC in order to facilitate the resolution of the issues in dispute in these proceedings.

11. I have no comment in relation to Contentions which do not mention visual impacts.

12. I comment on Contention 5b, Ecological Impacts in relation to visibility. The Contention has no Particulars.

Opinion in Relation to Relevant Contentions

Contention 5

5 Ecological Impacts s. The proposal offends the following objectives and considerations in clause 5. 13 Eco­tourist facilities in SSLEP 2015:-

a. Objectives (1)(a) and (b);

b. Clauses 5.13 (3)(b), (d), (e), (g) and (k).

Clause 5.13 is relevant to my expertise as it mentions visibility, as follows:

"(g) the development will be located to avoid visibility above ridge/ines and against escarpments and from watercourses and that any visual intrusion will be minimised through the choice of design, colours materials and landscaping with local indigenous flora, and"

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Ridgelines, escarpments and watercourses

T3.Tfie-slfe is situated on relatively level land, at a level intermediate between a gully along the north side of the site and a ridge system in the Royal National Park some distance to the south. The structures proposed are predominantly single level and lower than the surrounding tree canopy.

14. In views to the south from residential areas of Bundeena, an irregular ridge south of what is known as the Old Depot runs approximately east-west across the view line (crest height of approximately 65m AHD), before turning to the south at the Old Depot site and climbing to Jibbon Hill (80m AHD). This topography is the predominant landform that forms horizons to views: The ridges are also vegetated, increasing their heights as visual features.

15. The development is not located on a ridge. lt is located so that it is below the height of the adjacent ridge lines to its south. The topography which forms the background horizons to views above the development is significantly higher than the maximum height of the buildings. The proposed development is not situated on, nor will it be visible, above the ridgelines.

16. The development is not adjacent to nor visible against an escarpment. lt is situated on a side slope. While the slope below it has some exposed rock, it is not a prominent nor notable escarpment.

17. In any event, the development would not be visible against the side slope, even if it was claimed that the slope is an escarpment. as it is above the side slope in views from Bundeena or residences to the north.

18. lt is not within my expertise to comment on whether the drainage line in Spring Gully constitutes a watercourse. However, it is unlikely that any significant visibility of the development would occur in views from it, as the ·vegetation in ·the drainage lirie would not be subject to clearing for bushfire safety and would provide significant screening of views.

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Visual intrusion generally

19. There may be some visual evidence of the refuge building from some individual residences and possibly of the two adjacent tents closest to its west. There is unlikely to be a significant view of all or most of any of these structures. The visibility would not be intrusive, as they would be partly or · significantly screened by residual vegetation managed for bushfire safety purposes.

20. Intrusion would be minimised by the low scale of the structures, natural materials and the colour palette proposed of 'sand', 'brown' and 'bush green', which intended to reduce contrast with the soil, tree trunks and vegetation canopy.

21. The design, colours and materials of the structures have been chosen the minimise their visibility and blend into the natural setting. Thus, in my opinion, the visual impacts would be minimised.

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22. Screening the views would be by way of retained local indigenous flora, tending to minimise visibility and blend into the existing setting. In views from the margin of the National Park to the south, the development would be seen among and below the canopy of the surrounding vegetation.

23. In views outward from the sites of the structures proposed in the application, there was little evidence of the closest area of residential development, which is south east of Beachcomber Avenue and at the end of Bournemouth Street. With two exceptions, the lots in Beachcomber avenue are long and narrow, with most residences located close to the street. The two exceptions appear to relate to subdivisions of lots, with two residences located on the lower lots and closer to the boundary of the area of the land proposed for development (the Site). these are labelled 52A and 52B on the Sixmap aerial image from NSW LP I.

24. The land including the Site is currently vegetated throughout. To the rear of the residences in Beachcomber Avenue is lower wetland vegetation, which forms a partial understorey to taller tree vegetation behind residences in the vicinity of the intersection of Eric Street and Beachcomber Avenue and becomes more prominent moving from south east to north west.

25. The remainder of the land is vegetated with open woodland which appears to be predominantly pink bloodwood of relatively even age (Comymbia gummifera) with some large specimens of Sydney red gum (Corymbia costata), a few tall shrubs and an open understorey.

26. The topography adjacent to the subject land slopes at first downward from Beachcomber Avenue to the drainage line with wetland vegetation along it at the south west ends of the lots and then upward toward the Site. The site is on relatively level land above a change of slope or shelf with some outcropping rock at and below the crest. The site is on relatively level land at between approximately 51 m and 57 m AHD.

27. The houses south west of Beachcomber Avenue and approximately north of the Site sit between approximately the 25m and 35m AHD contour, with the exception of 52A and 52B on subdivided lots, which appear to sit approximately at a 15m AHD contour.

28. Distances between potential residences in the immediate potential visual catchment in Beachcomber Avenue and Bournemouth Street and the site were estimated in the VIA prepared by Brett Daintry to vary between 152m (at what is assumed to be 53B Beachcomber Avenue) and 315m from 52 Bournemouth Street.

29. Figure 5 of the VIA shows horizontal separation distances in relation to the subdivision plan for this area. The majority of residences with potential views are within 150-200m of the proposed refuge building on the Site.

30 .. Relative to these residences any views of the Site would be at an upward viewing angle.

31. Between the existing housing in Beachcomber Avenue and the Site, the existing canopy of woodland trees largely obscures views. This effect would be increased by the variation

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in relative elevation, with the upward viewing angle from houses intersecting with canopy of trees at various levels on the intervening slope.

32. In the existing situation there would be minimal visibility of structures proposed on the Site. This would be contributed to by both vegetation on the subject land between viewers and the Site and also by vegetation retained or planted in the back yards of residences on the south east side of Beachcomber Avenue.

33. The extent to which existing vegetation screens views between the Site and even the closest residences in Beachcomber Avenue can be ascertained by inspection of the example photographic plates attached to this report. Even when using manual focus to avoid the problem of the camera focussing on trees trunks and canopy in the foreground rather than on houses in the background if visible, there is minimal evidence of any residences.

34. it follows that there would be minimal evidence of any structures on the Site in the reverse view (ie, from residences), if the existing situation with regard to vegetation on the land and the Site remained.

35. I understand from the SEE however that there is a need to manage the vegetation between the residences and the site for bushfire safety reasons. Three zones of different proposed vegetation management would exist between the residences and the Site, ie, a riparian zone, that is approximately parallel to the south west and rear boundaries of the residential properties in Beachcomber Avenue, a Fuel Reduced Area beyond that, toward the proposed development area and an Inner Protection Area (IPA) in the immediate vicinity of the structures.

36. it is not within my expertise to comment on the bushfire safety issues. I understand however, that in effect the canopy inside the IPA would be reduced to an average of 15% cover and that in that zone remaining trees would need to be pruned to prevent there being interlocking crowns.

37. In the FRA the fuel would be managed to achieve appropriate bushfire safety standards and the existing canopy would be largely retained, consistent with the requirements of an Asset Protection Zone which covers part of the subject land and a Strategic Fire Advantage Zone, which covers the remainder.

38. The riparian zone would not be subject to any management resulting in change to understorey or canopy for bushfire safety purposes, as it is intended that the management of the riparian zone would result in retention of the existing vegetation in this area to an extent greater than has occurred in the past as a result of hazard reduction burning of the adjacent APZ which according to the SEE has resulted in burning of riparian zone vegetation.

39. In relation to views from the neighbouring properties, the reduction in canopy in the IPA would be likely to result in a decrease in perception of the density of the vegetation canopy generally.

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40. The extent to which that reduction in canopy density would be likely to cause an increase in visibility of the proposed structures on the site would vary as a result of a number of factors.

41. Notwithstanding the reduction in density of vegetation canopy in the IPA, the existing screening provided by vegetation in the FRA and riparian zones, which are between the viewers' locations and the structures proposed on the Site, would continue to screen and in some cases to block views of the proposed structures.

42. Vegetation retained or grown within the lower parts of the lots in Beachcomber Avenue would also contribute to screening of views, to variable extents, depending on the relative elevation of the viewing place and the location of the viewer on each lot.

43. In this regard I noted that in the area mapped as the riparian zone, the vegetation varies from low wetland to woodland with a wetland understorey. For example, on the Site Plan drawing P13 Issue J prepared by RPS, there is tree vegetation above the wetland layer, which would cause significant view blocking or filtering of views from residences toward the eastern end of Beachcomber Avenue. That vegetation would not be subject to management which would result in reduction in canopy density and therefore the current screening effect on views provided by that vegetation, which would be in the foreground of views from the residences in general, would remain as at present.

44. In the most direct views and in which the depth of land in the FRA is the least (for example from residences approximately north east of the site of the proposed refuge building such as Lots 159-162 in DP233593 or Lots 62 and 64 in DP846155), reduction in the canopy density may lead to visibility of some features of structures proposed, in particular the refuge building.

45. However, the factors mentioned above would reduce the extent to which structures would be exposed, ie.:

a. Viewer levels being relatively below the site

b. Retained vegetation canopy on the Site and behind the Site being above the height of the proposed structures

c. Upward view angle

d. View lines intersected by tree canopies either in the foreground or slope up to the Site, or both

e. Screening effects of vegetation canopy that would not be subject to thinning, between the viewer and the Site

46. Taken all these considerations together, in my opinion there may be some visual evidence of the refuge building from some individual residences and possibly of the two adjacent tents closest to its west. There is unlikely to be a significant view of all or most of any of these structures.

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47. There is unlikely to be any substantive visibility of the remaining tents and no visibility of the road or parking behind the refuge building.

48. As the camp is walk-in only, there would be no significant visibility of traffic moving to or from it or of night-time light spill caused by cars.

49. Taking all of the factors of visual effects into account, in my opinion there would be minor visibility of some structures in the proposal, at most.

50. In that regard, I am generally in agreement with the conclusion of Mr Daintry in relation to likely low overall visibility of the proposal as set out in the VIR. I agree that there may be visibility of some structures, most likely part or evidence of the presence of the refuge building and possibly immediately adjacent tents to its west.

51. In the context of the apparent natural appearance of the landscape visible from the rear of residences identified above, the proposed development would cause a minor change to the current appearance and scenic quality of the view, in some views. The view would not remain with an essentially unchanged natural appearance.

52. In the context of what I understand to be a form of development that is permissible on the Site, it would not be reasonable to expect there to be no visible evidence of that use. The proposal appears to be designed to make use of the natural attributes of the landscape in a way which would tend to minimise its visual impacts, thereby mitigating the effects of the proposal on the visual character and quality of the view in a satisfactory way.

53. While currently the land proposed for development may appear essentially indistinguishable from the adjacent National Park in the background in views from Beachcomber Avenue, Bournemouth Street and Eric Street, it is in fact privately owned and as such a permissible development would not be expected to be invisible.

54. Further, as bushfire safety considerations apply to any development proposed on that land, it would not be expected that such work would not cause some changes to visual effects of a permissible development, including some increase in visibility.

These issues are relevant to the two planning principles that could assist with assessing the merits of the application, Tenacity Consulting v Warringah {2004] NSWLEC 140- Principles of view sharing: the impact on neighbours (Tenacity) and Rose Bay Marina Pty Limited v Woollahra Municipal Council and An or [2013] NSWLEC 1046 (Rose Bay). Tenacity concerns view loss from the private and Rose Bay to view loss from the public domain.

55. I agree with the conclusion in the VIR that there would be no view loss from private residences in terms of Tenacity. In that regard, Tenacity has no work to do in relation to the merits of this matter.

56. I do not need to comment in detail on each of the matters considered in the VIR in relation to the qualitative assessment recommended in Rose Bay, as I am in general agreement with the conclusions in regard to the application of the planning principle, as follows:

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a. .No specific significance appears to attach to views from the public domain, which are limited to views from part of Eric Street, the terminus of Bournemouth Street, and glimpses between and in some cases over residences in Beachcomber Avenue. The Site is part of a view of largely natural appearance in a background of tree canopy surmounted by higher topography to the south. The proposal will not cause view loss.

b. The view affected is not as far as I am aware specifically identified as of significance or to be iconic, whereas many adjacent areas, not visible in the public domain catchment of the site, such as the coastal escarpments visual impacts form the Coastal Track and Wedding Cake Rock, are of identified significance, but unaffected by the proposal.

c. The views affected are primarily from fixed and isolated locations in streets in the public domain, from which significant areas of land of the same character are also visible which would be unaffected by the proposal.

d. The public are attracted to nearby entrances to the Coastal Track and to landmarks in the vicinity that are not visible in the context of the Site and may perceive some evidence of the proposed development. However, that perception would be in the context of views of the adjacent Bundeena residential area and an adjacent permissible use of the intervening land. The view of what may be visible, for example from the Old Depot and tracks emanating from that location, would not cause any loss of view.

e. As there would be no view loss caused by the proposal, the question in Rose Bay which relates to whether a proposal causes more obstruction than in the existing situation and whether retaining the view is tokenistic, is not relevant.

f. Finally, while the insertion of the new elements would cause a minor change to the nature of the present view from a small number of isolated locations in the public domain, the overall impact on views would be minor.

g. Finally, as noted above in considering other aspects of the qualitative assessment in Rose Bay, the new elements proposed do not cause view loss. lt is view loss, not qualitative change to the appearance of the environment, that is the focus of the Rose Bay planning principle.

57. In my opinion, assessed in relation to the Rose Bay planning principle, it can be concluded that there would be no significant view loss to the public domain.

58. Rose Bay notes that a sufficiently adverse conclusion on the impact on views from the public domain may be determinative of an application. As far as visual impacts are concerned, I am of the opinion that the level of impact would be minor and as such could not have the potential to be a determinative matter.

59. Rose Bay also notes that the impacts on views from the public domain may also be merely one of a number of factors in the broader assessment process for the proposal.

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60. lt is not for me to venture any opinion as to the overall merits of the application and in addition the other matters to which the Contentions refer are outside my expertise.

61. In summary, in my opinion the contention in relation to Clause 5.13 (g) is not well founded, as the proposed development satisfies each aspect in that clause. As far as visibility is concerned, it is my opinion that the proposal does not offend Clause 5.13(g) of SSLEP 2015.

8 November, 2016

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-rLa

View toward the Site from Eric Street adjacent to No. 134.

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View from north west corner of proposed refuge building looking north east

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View from south west corner of proposed refuge building looking north north west

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View from Tent 1 site looking north east

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View from Tent 2 site looking north north east

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View from Tent 4 site looking north

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View from Tent v site looking north north east

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View from Dining Tent site looking north north west

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View of proposed road across unmade Sussex Street, view north west

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55 Beachcomber Avenue: The dwelling is partly visible from the Site

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51 Beachcomber Avenue: This dwelling is partly visible from the Site

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47 Beachcomber Avenue: This dwelling is partly visible from the Site

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43 Beachcomber A venue

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41 Beachcomber A venue

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39 Beachcomber A venue

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37 Beachcomber Avenue

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35 Beachcomber Avenue: the rear balcony and balustrades are partly visible from the Site

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• Summary·Curricutum ·Vitae: .. or·1Richard·Lamb1(

•-+ Qualifications11

u

o-+ Bachelor·of-Science ·-·First·Ciass ·Honours, ·University·of·New·England1! o --+ Doctor·of.Philosophy, ·University·of·New··England·in ·19751J

•-+ Ernployment·history1!

1l

o --+ Tutor·and·teaching·fellow·-·University ·of-New·England ·School·of.Bota ny-1969-197 411 o --+ Lecturer, ·School·of·Ufe·Sciences, ·NSW·Institute·oHechnology·(UTS)·1975-19791f o -+ S enior·lecturer·in· Landscape·Architectu re, ·Architecture ·and ·Heritage-Conservation ·in ·the·

F aculty·of·Architecture, ·Design ·and·Pianning ·al·the ·University ·of·Sydney ·1980-20091! o --+ Director·of·Master·of-Heritage·Conservation ·P rogram, ·University·of·Sydney, ·1998-20061! o --+ Principal ·and·Director, ·Richard·lamb·and·Associates, 1989-2016 ·11

• -+ T eaching·and·research ·experience1]

11

o -+ visual ·pemeptiorn ·and ·cognition1! o -+ aesthetic·assessment·and·landscape·assessment1] o--+ interpretation·of-heritage·items·and·places1! o .... culturaHransformations·of·environments11 o .... conservation ·methods·and·practjces1!

•-+ Academic·supervision1! o .... Undergraduate-honours, ·dissertations ·and·research·reports1! o -+ Master·and·PhD ·candidates: ·heritage conservation ·and· environment/behaviour·studies11

11 •-+ Professional·capability11

11

o .... Consultant·specialising ·in ·visual·and ·heritage ·impacts·assessment·11 o --+ 30 ·year's ·experinence·in ·teaching ·and·research ·in ·environmental·impact, ·heritage ·and ·visual·

impact·assessment.11 o --+ Provides· profession al·services, ·expert· advice· and ·landscape· and ·ae sthetic·ass e ss me nts ·in·

many·dlfferent·contexts11 o --+ Specia11st·in ·documentation ·and ·analysis ·of·view·loss·and ·view·sharing11 o -+ Provides·expert·advice, ·testimony ·and ·evidence·to ·the ·Land·and·Environment ·Court·of.NSW ·

and·Pianrning·and·Environment·Court·of-Queensland·in·visual·and·heritage·contentions·in· various·classes of·litigation.1!

o --+ Secondall)'·specialisaHon ·In ·matters·of·landscape·heritage, ·heritage ·impacts ·and-heritage· view·studiestf

o --+ Appearances-in ·over·230 ·Land·and·E nvironment ·Court·of·New·South ·Wa1es·cases, · submisslons·to ·Commlssions·of·lnquiry·and·the·principal·constlltant·for·over·SOO ·individual· consultancies.1!

A·fuii·Cv·can·be·viewed·on·the·Richard·lamb·and·Associateswebsite ·at 11

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