[2002] NSWLEC 75
Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298
[1999] NSWLEC 280
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
[1998] NSWSC 163
Parkway Accommodation Pty Ltd v Newcastle City Council [2012] NSWLEC 1238
SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233
Source
Original judgment source is linked above.
Catchwords
[2002] NSWLEC 75
Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298[1999] NSWLEC 280
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468[1998] NSWSC 163
Parkway Accommodation Pty Ltd v Newcastle City Council [2012] NSWLEC 1238
SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233
Judgment (5 paragraphs)
[1]
The Applicant submits that a certifier may require of the Applicant full compliance with Section J9D4 of the NCC unless the terms of Condition 102 are varied to exempt the development from that part of the provision nominated by the condition.
I accept the Respondent's argument that it is not for the Court to vary the terms of conditions that are prescribed by the EPA Regulation, nor pick and choose the provisions of the NCC that are of convenience to an Applicant. Furthermore, I accept the question is a hypothetical one for which a cure may not be necessary, and which is, in any event, a matter for construction compliance.
[2]
It is commonly held that at the time of the original consent, the predecessor to WaterNSW, provided General Terms of Approval (GTA) dated 27 August 2021 (Exhibit 2, Tab 14) that were, for whatever reason, not incorporated in to the without prejudice conditions of consent annexed to the original consent.
However, on 24 February 2023, the Applicant sought, and was issued, a Controlled Activity Approval by the Department of Planning and Environment (Exhibit 6). The terms of the Controlled Activity Approval are virtually identical to those set out in the GTA.
Parties agree the terms of a condition of consent, at Condition 108 that the development is to comply with the Controlled Activity Approval, and any amendments or variations made thereto.
[3]
(1) The modification application is approved.
(2) Development Consent No. DA-2021/90 is modified in the terms in Annexure A.
(3) Development Consent No. DA-2021/90 as modified by the Court is Annexure B.
(4) All exhibits are returned, except for Exhibits A, B and H.
Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995
Building Act 1989
Planning and Assessment (Development Certification and Fire Safety) Regulation 2021
Cases Cited (12)
Judgment
COMMISSIONER: Eastern Valley Way, on Sydney's north shore, falls steeply in the vicinity of Sailors Bay Creek, before rising again in the direction of Castlecrag further north.
On the western side of Eastern Valley Way, close to Sailors Bay Creek, a residential flat building is under construction, consent for which was granted by the Court on 17 March 2022.
On 20 April 2023, the Applicant in these proceedings, Blanc Black Projects Pty Limited, filed modification application DA-2021/90/A with the Court, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), seeking to modify the consent granted by the Court for the demolition of existing buildings and construction of a new residential flat building comprising 11 apartments over basement car parking on the land described as Lots 1 and 2 in DP 554171 and known as 58-60 Eastern Valley Way, Northbridge (the original consent).
The original consent derives from a decision of the Court in Blanc Black Projects Pty Limited v Willoughby City Council [2022] NSWLEC 1135
The modification application seeks to modify the original consent as follows:
1. Minor internal and external alterations relating to Unit 3.02 to increase the internal area and amend from two bedrooms to three bedrooms.
2. Internal alterations to provide storage in units.
3. Deletion of Condition 3(a) which relates to the removal of 7 basement car parking spaces within the basement, and revisions to the basement to allow for a total of 20 car parking spaces, deleting a car stacker.
The modification application was amended by Notice of Motion on 13 July 2023 (Exhibit H), comprising the following amended plans and other documents:
1. Shadow diagrams Drawings Nos DA-2601/1 Revision 1, DA-2602/1 Revision 1 and DA-2603/1 Revision 1 prepared by 3EM Architects dated 2 June 2023.
2. Willoughby Council Application Form dated 14 June 2023.
3. Willoughby Council checklist dated 14 June 2023.
4. CIV Cost Estimate prepared by Mitchell Brandtman dated 5 June 2023.
5. Land Owner's Consent.
6. Design Verification Statement prepared by 3EM Architects dated 2 June 2023.
7. S4.55 Statement prepared by 3EM Architects dated 2 June 2023.
8. BASIX Certificate No.117303M_03.
9. Statement of Environmental Effects prepared by Ethos Urban dated 8 June 2023.
10. Stormwater Statement prepared by Telford Civil dated 1 June 2023.
The modification application was notified to adjoining and nearby properties from 18 July 2023 to 8 August 2023 in accordance with the Willoughby Community Participation Plan, in response to which no objections were received.
The amended modification application was once again amended by Notice of Motion filed on 27 September 2023, and was notified to adjoining and nearby properties from 26 October 2023 to 23 November 2023. I am advised that, once again, no objections were received.
At the commencement of the hearing, the Applicant sought leave, unopposed, to rely upon two architectural plans that have the effect of amending the modification application in the following ways:
1. Relocation of one bicycle parking from the basement to the ground floor, for use by visitors.
2. Amendments to the waste store in the basement.
The plans were consolidated in the architectural plan set marked Exhibit B.
Whether development is substantially the same.
Section 4.55 of the EPA Act relevantly provides:
…
(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if -
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with -
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
Subsections (1) and (1A) do not apply to such a modification.
(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
…
In considering whether the Court can be satisfied that the development to which the consent as proposed to be modified is substantially the same development as the development for which consent was originally granted, the Court has commonly held that it is insufficient to characterise development as substantially the same solely on the basis that the use is identical.
Instead, a comparative task is required. Such a task should involve a qualitative and quantitative appreciation of the development that is proposed to be modified, and the development for which consent was originally granted, including the circumstances in which development consent was granted.
Undertaking only a quantitative evaluation of the modification application, compared to the original consent, absent any qualitative assessment, will be legally flawed, for reasons shown by Bignold J in Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280, at [52].
The FSR is exceeded
The modification application seeks to increase the floor space of the development in two areas;
1. Firstly, by extending the floor area of Unit 3.02 some distance to the north into an area that, in the original consent, was covered open space, thereby adding an additional 46m2 of floor space.
2. Secondly, by converting storage space in the basement to four additional car parking spaces which exceeds the Respondent's car parking requirements, and so contributes an area of 54m2 of floor space.
The additional floor space has two consequences the Respondent considers unacceptable.
Firstly, the increase in floor space results in an exceedance of the FSR of the development as proposed to be modified from the FSR standard of 0.9:1 at cl 4.4. What flows from this is a failure to comply with objective (1)(c) and (d) of the FSR standard at cl 4.4 that seek to minimise the impacts of new development on surrounding properties in certain terms, and to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone.
Secondly, the increase in floor area to the uppermost level of the development does not comply with the controls at Part D2 of the WDCP 2006 (Exhibit 2, Tab 26A) that requires the floor plate at the fourth storey not to exceed 60% of the area of the floor below.
Mr Wells views the uppermost level, not in terms of an extension of 1.22m of the roof form from that in the original consent, but instead, in terms of the increase of internal floor space that extends 3m to the north.
Mr Gouge's evidence is that the topography, allotment location and proximity to substantial, mature trees in the Sailors Bay Creek Reserve render the additional floor space at the uppermost level virtually imperceptible from the public domain.
The Respondent submits that, contrary to Mr Gouge's evidence, the decision to expand the size and number of bedrooms in Unit 3.02, from two bedrooms to three bedrooms, is not a natural consequence of the design development process, but is wilful and profit-driven, and absent reasonable environmental planning grounds.
The parties agree that the basement perimeter, layout and circulation is not proposed to be altered as a result of the modification, other than the re-allocation of area to four car parking spaces that were previously identified as unit storage.
While the Applicant submits that more car parking cannot be a bad thing for a site located 100m from a bus stop, I note that is not a view universally held by those who advance the theory commonly known as 'induced demand'; which is, at is most simple, the inevitable result of increasing the supply of roads, or road-based infrastructure, which builds an expectation for more of the same, and sees people adjust their own practices and habits to an ever-increasing supply of that thing.
Overdevelopment
The Respondent contends the modification application results in development that is excessive and constitutes an overdevelopment of the site by virtue of the height and FSR exceedance, and because the development is contrary to the fourth and sixth objective of the R3 Medium Density Residential zone:
• To accommodate development that is compatible with the scale and character of the surrounding residential development.
…
• To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping.
In the reasons given for the original consent, the Court considered a contention in respect of overdevelopment, albeit for reasons other than those now contended.
For completeness, the Court, at the time, was asked to consider the cumulative effect of the height exceedance, the site coverage of the proposal, and non-compliance with setback provisions as indicia of overdevelopment.
The Court found that, on the basis of blade wall extensions, parapets and planter boxes, add visual interest and streetscape variety, and so did not then represent overdevelopment.
In the circumstances now before the Court, Mr Wells argues that the exceedance of height and FSR are evidence of overdevelopment, and that the 'walking back' of an agreement in respect of storage in the basement that resulted in compliance with the FSR, "undoes a mechanism that was an essential feature of the Consent".
As I understand it, the Respondent invites me to view this 'walking back' akin to 'scope creep' or 'creep factor' as it has been called in previous decisions of the Court.
As shown in Parkway, there is no legal impediment to lodging an application such as this, and re-agitating certain issues. However, the Respondent submits that an assessment of such an application is not so limited as would prevent the Court from considering the development as a whole, else a certain 'creep factor' could infect the planning regime, as explained by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 (Michael Standley) at [476]-[477]:
…The consent authority is directed to consider any s90 matter relevant to the whole development as modified. This is the plain meaning of the provision, and it offers a principled way for limiting the dangers of the creep factor to which reference has already been made.
…
The same point can be demonstrated by reference to the potential evils of the "creep factor" argument raised earlier in a different context. The construction of subsection (3A) which I have espoused offers a principled way of addressing the situation presented by successive modifications that gradually increase the height of a building in a way that is substantial when the original approval is compared with the development embodied in the latest modification proposal. In my view the consent authority is permitted, indeed bound, to assess the environmental impact of the cumulative effect of prior modifications when addressing the latest modification application. …"
Precedent and public interest
The Respondent contends that the development as proposed to be modified, if approved, would establish an undesirable precedent likely to influence future development in R3 Zone in which the site is located.
I accept that precedent can be a valid planning consideration (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75), however, as I have found the FSR, height and bulk and scale to be acceptable, I do not consider the development as proposed to be modified to be objectionable.
Furthermore, I note there are unique features identified in the original consent, including risk of flooding on the site and the proximity of a substantial stand of mature trees that plays not an insignificant role in the question of bulk and scale that is perceived from Eastern Valley Way.
The site is also unique to the R3 zone on the western side of Eastern Valley Way for it being the northern most, or last, site in the row of sites between Sailors Bay Road and Sailors Bay Creek Reserve. As such, the uppermost level that is in contention, will not be read against adjoining development to the north, unlike sites to the south that will be read is context with adjoining development.
In submissions, the Respondent argues the development is one of the first, if not the first development in the R3 zone. The Court is aware of at least two other medium density developments in the vicinity of the site, at 46-48A Eastern Valley Way, and 52-54 Eastern Valley Way that, together with the development the subject of this modification application, contribute to the desired future character of the area.
The proposed modification is substantially the same
In opening submissions, the Applicant invites the Court to consider contentions in respect of urban design, floor space ratio, building height and overdevelopment as a whole.
The particulars of each contention refer either to bulk and scale of the development as proposed to be modified or, in the case of the contention in respect of overdevelopment, it cites height and FSR in its particulars, which are also contentions in themselves.
As stated at [23]-[25], the assessment required of the Court is one that involves both a quantitative and qualitative appreciation of the development that is proposed to be modified, and the development for which consent was originally granted, including the circumstances in which development consent was granted.
For the reasons that follow, I accept that the development as proposed to be modified is substantially the same in terms of its height, FSR, bulk and scale as the development the subject of the original consent:
In quantitative terms:
1. The modification application seeks consent for 102m2 of additional floor space in the basement, and at Level 3. As I find the additional floor space does not have a visual or performance impact on the development or the road network beyond the site, I consider the area of 46m2 of additional floor space on Level 3 that is visible to be the quantum of particular focus of this assessment.
2. As stated at [54]-[57], I accept the additional floor space will remain scarcely perceptible, notwithstanding the uppermost floor now, as it did in the original consent, exceed the floor area control at Part D2 of the WDCP 2006 of no more than 60% of the floor below.
3. The height exceedance can also be described in quantitative terms of between 300-350mm above the height of the development the subject of the original consent when measured at the north eastern most corner of Level 3, or 350mm at the north western most corner is not a material change, in my view, to the height, bulk or scale of the development when viewed from Eastern Valley Way, or from the park north of the Sailor's Bay Creek Reserve. The parapet is not proposed to be raised, and no additional bulk is proposed above the parapet to Level 3. The height exceedance is not due to additional built form above this level, but is instead the result of built form extending northwards as the site below it falls towards Sailor's Bay Creek. While the Applicant submits the Court dismissed a similarly minor modification proposed to the upper levels of a development in Arrage v Inner West Council [2018] NSWLEC 1628 (Arrage No 2), it has to be noted the modifications in that matter, at [4], are shown to comprise, relevantly, modification of the approved fifth floor communal open space to provide three additional dwellings, the addition of a sixth storey containing a two bedroom dwelling; and communal open space, comprising seating, landscaping and BBQ. The distinction between the modifications proposed in Arrage, and the extension of an already approved level by a distance of 1.22m could not be more stark.
Furthermore, the quantitative and qualitative comparison requires an understanding of the essential features or components of the originally approved and modified developments in order to assess whether the modified development is substantially the same as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85 (Arrage), at [25]).
In the circumstances of this case, the Respondent contends that any quantitative and qualitative assessment must consider the quantum and effect of three essential features or elements on which the original consent was founded.
Firstly, the Applicant seeks to increase the gross floor area (GFA) of the development that gives rise to the floor space ratio (FSR) permitted on the site. The parties agree that the modification application would convert areas previously excluded from FSR into areas that must be included in the calculation of FSR; resulting in a FSR expressed as 0.96:1, which exceeds that the FSR standard permitted by cl 4.4 of the WLEP of 0.9:1.
Secondly, the Applicant seeks to increase the height of the building beyond the height approved by the original consent. As height is a factor in the bulk and scale of any development, a modification of the height of the building is a change to an element regarded as essential at the time of the original consent.
Thirdly, the alterations propose to increase the appearance of bulk and scale when viewed from Eastern Valley Way that were essential elements considered at the time of the original consent.
In essence, the Respondent submits that that the height, FSR, bulk and scale of the development were all essential elements and features of the original consent that are now sought by the Applicant to be, in the words of Mr Wells, "walked back" via the mechanism of modification that does not require the rigour of a written request of a kind found in cl 4.6 of the WLEP to argue the grounds on which such matters would otherwise have been assessed, if in contest at the time of the original consent.
In support of this position, the Respondent relies on the chronology of decisions evident in the various applications made by the Applicant to the Respondent, or to the Court.
To this end, the Respondent relies on agreement recorded in the joint expert report prepared in support of the proceedings resulting in the original consent in which the experts agree that the re-allocation of car parking spaces in the basement to unit storage achieves the required FSR and so resolves the contention (Exhibit 2, Tab 7). It is this agreement I understand Mr Wells believes is being 'walked back'.
The Applicant meets this assertion by relying on Parkway Accommodation Pty Ltd v Newcastle City Council [2012] NSWLEC 1238 (Parkway) to show there is no legal barrier to lodging an application such as this, even in circumstances where an applicant benefits from a prior consent that could have been, but was not, appealed should the applicant have wished at the time to have 'perfected the consent', rather than now re-agitating certain of those matters in a subsequent application.
In fact, the Respondent identifies a reduction in the car parking rates between the WDCP 2006 and WDCP 2023, indicative of a desire to reduce, and not expand car use.
That said, I note a letter from Transport for NSW dated 16 August 2023 confirms in writing that when the provisions of s 2.122 of State Environmental Planning Policy (Transport and Infrastructure) 2021 are considered, the development as proposed to be modified does not give rise to objections. Those provisions deal with traffic generating development including, relevantly, the size or capacity of a site with direct vehicular access to a road, the efficiency of movement of people and any potential traffic safety, road congestion or parking implications.
Likewise, the ASOFAC does not identify additional traffic impacts such as excessive queueing or waiting times, entry or exit procedures or clearances, or traffic generated by development on a classified road to be contentious.
In respect of the additional GFA proposed to Unit 3.02, I do not place much weight on the terms of agreements arrived at in proceedings that precede those before me now. While the Court may have regard to the circumstances in which development consent was granted, I do not understand that to extend to a fresh consideration of the myriad negotiations that inevitably occur between experts in arriving at positions that may or may not have informed the circumstances in which development consent was granted.
It is the consent as originally granted that forms the basis of an assessment of whether the development as proposed to be modified is substantially the same. A comparison of the proposed modified development and the originally approved development should occur in their proper contexts, including the circumstances in which development consent was granted, does not substitute a different or additional test to the test imposed by the statutory provision giving the power to modify a development consent (Arrage at [19]).
Instead, I regard an assessment of the impact of the additional GFA now in contest before the Court to be the primary task required of me, and not the terms of an agreement between two experts, who are not both the same experts now assisting the Court.
Mr Wells' opinion is, in essence, that seeking additional floor space now seeks to 'escape' the jurisdictional requirement that would have been required of the Applicant, had the issue been exposed to the scrutiny demanded by cl 4.6 of the WLEP.
The Court has consistently held that the power to modify a consent that breaches a development standard is a complete source of power, and so cl 4.6 of the WLEP does not apply to modification applications: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31].
However, to the extent the Respondent contends the burden falls to the Applicant to demonstrate compliance with the FSR standard is unreasonable or unnecessary, and that sufficient environmental grounds must be established, Mr Gouge sets out the same at pars 66-67 of the joint expert report.
Compliance with the FSR standard is said to be unreasonable or unnecessary because the objectives at cl 4.4 are achieved for the following reasons:
"The proposed development is suitable to the Site's unique setting, sloping topography and flooding hazard and the specific design response results in a neglectable impact when viewed from the surrounding area, particularly Eastern Valley Way and Sailors Bay Creek (where accessible) and Willoughby Market Garden Park;
The exceedance of FSR is confined to the basement for car parking and minor extent to level 3 that has been demonstrated to have no undue impacts to the road network;
The proposal is not located in the vicinity of any items of heritage and will not impact on the understanding of heritage items located away from the Site."
Environmental planning grounds advanced by Mr Gouge are as follows:
"The scale and form of the building is compatible with the existing infill development as well as sites within the precinct that have been redeveloped. The proposed FSR exceedance within the basement does not change this compatibility.
The site is of sufficient size (i.e. compliant size and width) to support the additional GFA within the basement.
The exceedance of GFA does not extend the scale of the building above ground.
The proposed landscaped area complies with the WDCP provisions.
The proposed built form is compatible with the scale, bulk and overall street presentation of existing development.
The proposal is compatible with both the existing built form as well as likely future built form (in order to be compatible, the bulk and scale does not necessarily need to be same)
Does not exacerbate impacts on views to any of the adjoining properties due to its siting, design, and location."
Having regard to the plans the subject of the original consent, I accept that the additional GFA that results in an exceedance of the FSR standard does not materially change the development the subject of the original consent.
The additional four car parking spaces in the basement does not contribute in either a visual sense, or more significantly, in my view, in terms of any impact on the road network. The storage that was located in the basement is now shown in each unit above ground, where storage is more accessible and convenient and likely to be in joinery and not in open mesh cages as is often the case. The experts agree the volume of storage is sufficient.
In terms of the additional floor space at Level 3, I accept Mr Gouge's evidence that it is more appropriate to consider the additional bulk at this level to be measured by reference to the roof overhang and not the glazing line that is setback from the roof overhang. This is because, when viewed from the street, the angle of sight does not afford a view to the glazing line. For all intents and purposes, the glazing line is unseen from Eastern Valley Way and, because of its setback, unseen from the Park to the north of Sailor's Bay Creek Reserve.
Instead, the broad blade column would be seen from both locations, as would the roof overhang. The open void to the south of the broad blade column in the original consent is proposed to be enclosed by a new window, with a further columnar extension proposed further to the north of the broad blade column. Again, due to the angle of sight from Eastern Valley Way, it is likely this columnar extension will be masked by the broad blade column.
The alternative view, Mason P observes in Michael Standley, at [476] is:
"…unrealistic and potentially unreasonable because a particular development may have to be viewed as a whole before its impact upon the amenity of a neighbourhood can possibly be gauged. For example, a modification which introduces greater usage of a high rise development may necessitate additional lift facilities. It would be unrealistic to consider the modification if hamstrung by the existing consent's provision for lifts."
Reference to subs 3A, at [100], is a reference to s 102(3A) of the EPA Act in the form it was when considered by Mason P. It is found in a virtually identical form at s 4.55(3) in the EPA Act current at the date of this decision.
In my view, there is no risk of creep in the circumstances of this case as the modification application is a modification proposed to the original consent. Should another modification application or applications be lodged sometime in the future that would seek to further modify the development, the text of the provision at s 4.55(3) requires those matters at s 4.15 of the EPA Act as are of relevance to be considered.
In the circumstances of this case, the Respondent argues that the Applicant 'walks back' agreement as to the number of car parking spaces appropriate in the basement.
The Court has considered the number now proposed to be modified, which is greater than the number for which consent was granted in the original consent. The Court has also, in considering the proposed change to the number of car parking spaces in the basement, considered the provisions of s 2.122 of State Environmental Planning Policy (Transport and Infrastructure) 2021, in accordance with s 4.15(1)(a)(i) of the EPA Act, and the car parking rates found in the WDCP 2006 and the WDCP 2023, in accordance with s 4.15(1)(a)(iii) of the EPA Act.
Relatedly, the number of car parking spaces displaces the unit storage that was, at the time of the original consent, proposed in the basement. The Court has also considered the location and volume of storage that is now proposed to be located within units, by reference to the ADG, despite the designer's statement offering little assistance.
I have found the FSR and height exceedance to result in no adverse environmental impacts, and I do not understand there to be any reason that I should conclude the development as proposed to be modified is an overdevelopment of the site. The proposal is not inconsistent with the fourth and sixth objectives of the R3 zone.
In qualitative terms:
1. Firstly, the site, and the siting of the development on the site, is such that the additional floor space proposed at Level 3 of the development is virtually surrounded by dense tree canopy planted in the riparian zone of Sailor's Bay Creek Reserve, or street trees located within the Eastern Valley Way road reserve. As such, I accept Mr Gouge's opinion that a sightline to the additional bulk derived from the additional floor space is difficult to obtain from the west, north or south of the site. To the extent a sightline is visible from certain locations on Eastern Valley Way, I regard the scale of the additional bulk in the north easter corner of Level 3 to be so minor as to remain scarcely perceptible to anyone in the public domain.
2. Secondly, as the perimeter of the uppermost level is now proposed to be a continuous planter, as shown in the marketing imagery at [84], I accept the additional bulk to the north east remains softened by a continuous planted edge, and only reinforces the setback of the uppermost level from the level below.
3. Finally, I do not consider the development as proposed to be modified to be antithetical to the objectives of the height standard at cl 4.3 of the WLEP, or of the FSR standard at cl 4.4 of the WLEP. Nor is it contrary to the objectives of the zone, as the development the subject of the original consent was likewise found not to be.
As stated at [93], I find the bulk and scale of the proposal acceptable, and I find the proposal is not an overdevelopment of the site for reasons at [107].