Brown v Waverley Council

Site and the locality

1. The site is located on the southern side of Bulga Road, between Military Road to the west and the Pacific Ocean to the east. The site is legally identified as Lot 22 DP 8724, and is 531.1m2 with a frontage of 15.24m to Bulga Road. The site falls from the rear towards the street by around 10.65m. Currently the site is occupied by a two storey brick dual occupancy, which is due to be demolished pursuant to the development consent the subject of the modification application.
2. Bulga Road falls away from Military Road toward the ocean, so that each property on the southern side of Bulga Road has a potential view corridor toward the ocean over the properties to the east. Bulga Road comprises a variety of residential developments, including dwellings and dual occupancies, and two residential flat buildings are located immediately to the west of the site at 1 and 5 Bulga Road.
3. There are no roof terraces located on any dwelling on Bulga Road. However, a number of the dwellings to the east of the site have elevated terraces or balconies to take advantage of the views to the Pacific Ocean.
4. George Street, which is to the south of Bulga Road, runs parallel to Bulga Road and there are roof terraces at 4 and 9 George Street.

Planning framework

1. In considering the appeal, the role of the Court is to re-exercise the functions of the consent authority, the Council, in determining the modification application pursuant to s 4.55(2) of the EPA Act (s 39 of the LEC Act).
2. The exercise of the power in subs 4.55(2) requires the consent authority, in this case the Court, to be first satisfied that "the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted". There was no issue raised by the Council with respect to this being satisfied, and Ms McCabe and Mr Boston agree that the development to which the consent as modified relates is substantially the same as that for which consent was granted. I accept that what is sought in the modification application results in a development that is substantially the same as that which was the subject of the development consent.
3. Subsection (3) of s 4.55 then provides: (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.
4. Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations. Amongst other things, s 4.15(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
5. The site is zoned R2 - Low Density Residential pursuant to the Waverley Local Environmental Plan 2012 ("WLEP 2012"), and has a height development standard of 8.5m and a FSR development standard of 0.5:1. The proposed modified development does not cause a breach of either the height or FSR development standard.
6. Section 4.15(1)(a)(iii) of the EPA Act requires that I take into consideration the provisions of the development control plan, which is the Waverley Development Control Plan 2012 ("WDCP 2012"). The Waverley Development Control Plan 2012 Amendment No. 6 was formally adopted on 4 September 2018 and is effective on 1 November 2018. The provision applicable to roof terraces is now found at Clause 2.5: Visual and Acoustic Privacy in Part C2. However, as a result of the savings provision in Part A1 of the WDCP 2012, the version of the WDCP 2012 that applied at the date of lodgement (WDCP 2012 Amendment No 5) continues to apply. Accordingly, the applicable provision is cl 1.8 of C1 of WDCP 2012 Amendment No 5 and provides (insofar as it is relevant): "1.8 VISUAL AND ACOUSTIC PRIVACY Privacy is important for residential amenity. The enjoyment of a residential property by its occupants relies on achieving a reasonable level of acoustic and visual privacy. Roof terraces are generally discouraged however there may be instances where a small roof terrace may be appropriate. Where a roof terrace is proposed the application must have regard for the Land and Environment Court "Super Studio" Planning Principle available at: http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/principles/planning_principles.aspx Objectives (a) To ensure that new developments and / or alterations and additions to lower density residential accommodation does not unreasonably impact upon existing residential or other properties due to unacceptable loss of privacy or generation of noise. (b) To minimise the impact of roof terraces on adjoining properties. Controls … (e) Roof tops are to be non-trafficable and not capable of being used as roof terraces or as entertainment areas, except in the following circumstances: (i) Developments contiguous to the subject site include a roof terrace; (ii) They will not result in unreasonable amenity impacts such as overlooking and loss of privacy and acceptable noise; (iii) They are not to exceed 15m² in area; (iv) They are provided for casual and infrequent activity and not as an extension of private open space or entertaining areas; and (v) Any access must be provided within the envelope of the main building and there are to be no access hoods or lift overruns proposed above the main roof level. Operable skylights and hydraulic lifts are acceptable where they finish generally flush with the roof level. It is acknowledged that in some areas within Waverley there are a number of large roof top terraces. These large terraces (larger than 15m²) may impact upon the visual and acoustic privacy of adjoining properties. Control (d) above specifically aims to limit this development outcome continuing and the existence of larger roof top terraces in close proximity to the proposed roof terrace does not justify a variation from the maximum size control in (d) above. …"
7. In discussing whether there is compliance with (e)(i) of cl 1.8, the parties relied on the Macquarie Dictionary definition of "contiguous", which is "adj. 1. touching; in contact. 2. in close proximity without actually touching; near."
8. The Council submits that I also ought to have regard to the relevant provision of the WDCP 2012 Amendment No 6, despite it not being strictly applicable. With emphasis added to highlight where the new provision differs from the applicable provision, it provides (at cl 2.5 of C2): "2.5 VISUAL AND ACOUSTIC PRIVACY Objectives (a) To ensure that development does not unreasonably impact upon existing residential or other properties due to unacceptable loss of privacy or generation of noise. (b) To minimise the impact of roof terraces on adjoining properties. (c) To ensure that development provides residents with a reasonable level of acoustic and visual privacy. (d) To minimise the provision of roof terraces where it is uncharacteristic of the area. Controls (a) Development is to consider the Privacy Planning Principle in Super Studio v Waverley Council [2004] NSWLEC 91 at 5-7. … (f) Roof tops are to be non-trafficable and not capable of being used as roof terraces or as entertainment areas, except in the following circumstances: (i) There is a predominance of roof terraces in the immediate vicinity of the site; (ii) They will not result in unreasonable amenity impacts such as overlooking and loss of privacy and acceptable noise; (iii) They are not to exceed 15m² in area; (iv) They are provided for casual and infrequent activity and not as an extension of private open space or entertaining areas; and (v) Any access must be provided within the envelope of the main building and there are to be no access hoods or lift overruns proposed above the main roof level. Operable skylights and hydraulic lifts are acceptable where they finish generally flush with the roof level. It is acknowledged that in some areas within Waverley there are a number of large roof-top terraces. These large terraces (larger than 15m²) may impact upon the visual and acoustic privacy of adjoining properties. Control (f) above specifically aims to limit this development outcome continuing and the existence of larger roof top terraces in close proximity to the proposed roof terrace does not justify a variation from the maximum size control in (f) above. ... (emphasis added)"
9. The header to cl 1.8 of Amendment No 5 requires consideration of the planning principle in Super Studio v Waverley [2004] NSWLEC 91, which provides at [5-7]: "5 Several planning principles are relevant to the determination of this appeal. The first is that the acceptability of an impact depends not only on the extent of the impact but also on reasonableness of, and necessity for, the development that causes it. For example, the privacy impact of a second-storey side window in an area of two-storey buildings should be accorded a higher threshold of acceptability than the impact of a second-storey balcony in a house that already has three other balconies. Applying this principle to the present case, I note that the approved proposal already has three outdoor areas. The surrounding houses do not have roof terraces, so a roof terrace would be a new element in the area. This does not mean that it is inappropriate, only that its impact should be assessed with heightened sensitivity. A roof terrace would be acceptable only if its impact were minor or negligible. 6 The second principle is that where proposed landscaping is the main safeguard against overlooking, it should be given minor weight. The effectiveness of landscaping as a privacy screen depends on continued maintenance, good climatic conditions and good luck. While it is theoretically possible for a council to compel an applicant to maintain landscaping to achieve the height and density proposed in an application, in practice this rarely happens. 7 The third principle relates to the extent to which an approval for this application would be used as a precedent in favour of approving other applications for roof terraces. The possibility that an approval may constitute a precedent has not been a factor in my decision. Other roof terraces would have different impacts from those of the current proposal."

Resident evidence

1. Ms Ibrahimi, a local resident of 1 Bulga Road, attended the site view and made submissions in objection to the roof terraces. In particular, she expressed concern that she would lose views to the ocean from her unit, and that the approval of the roof terrace would create a precedent for additional roof terraces in the area.
2. Both Ms McCabe and Mr Boston agree that the proposed roof terraces will not cause any loss of views from 1 Bulga Road. The remaining concern about precedent is dealt with in my consideration below.

Is there an unacceptable loss of visual and acoustic privacy?

1. Clause 1.8 of the WDCP 2012 is concerned with visual and acoustic privacy. Given that the objectives are to ensure that the proposal "does not unreasonably impact upon existing residential or other properties due to unacceptable loss of privacy or generation of noise" and "to minimise the impact of roof terraces on adjoining properties", the question before the Court is whether the impacts of the roof terrace are unreasonable or unacceptable. This is consistent with the controls with respect to roof terraces, which make roof terraces acceptable only if certain criteria are met, including that the roof terrace "will not result in unreasonable amenity impacts such as overlooking and loss of privacy and acceptable noise."
2. In the present application, there are visual privacy impacts caused by the introduction of roof terraces. The fourth floor of the adjacent residential flat building (at 5 Bulga Road) has floor to ceiling glass windows along the north-eastern edge and continuing along the eastern elevation adjacent to the boundary with 7 Bulga Road. There are no privacy measures to prevent someone looking into the glass windows, behind which there is a living area and bedroom. The glass windows provide the occupants of Unit 6, 5 Bulga Road with uninterrupted views to the Pacific Ocean across the side boundary and over the roof of 7 Bulga Road. A person standing on the proposed roof terraces would be standing 2.19m below the floor level of those units, and would have a direct line of sight to those glass windows. There would also be a line of sight from the roof terrace to the windows to the third floor of 5 Bulga Road, which has a floor level that is 0.86m below that of the roof terrace, but the windows are much smaller than those on the fourth floor and that line of sight is obscured by louvres on the windows. The question for consideration is whether these impacts, together with other acoustic and visual privacy impacts, are unreasonable or unacceptable.

The Council's position is that there are unreasonable impacts

1. The Council's position is that, firstly, the roof terraces do not meet the criteria in cl 1.8(e) that are required to be met to qualify for the exception to the presumption that roof terraces are not acceptable. Secondly, the Council is of the view that the roof terraces do not meet the objectives of the standard in cl 1.8, as they create unreasonable acoustic and visual privacy impacts. Thirdly, the Council points to the WDCP 2012 Amendment No 6 to demonstrate that the Council's policy is to discourage roof terraces. Fourthly, the Council says that the principle in Super Studio v Waverley for a roof terrace to "be acceptable only if its impact were minor or negligible" has not been met.
2. The Council relies on the expert opinion evidence of Ms McCabe. Ms McCabe's opinion is that the relationship of the proposed roof terraces to adjoining properties results in unreasonable aural and visual privacy impacts, particularly to 5 Bulga Road given the level and proximity of the building and the ability to look directly in to the living areas of two levels. Her view is that these are unnecessary visual and aural privacy impacts to 5 Bulga Road. She opines that there is also potential for the roof terraces to impact upon the future redevelopment of 9 Bulga Road, as they would have to design in a way to mitigate the impacts of overlooking occasioned by the roof terrace. As such, her evidence is that the approval of the roof terraces would unnecessarily increase the impacts of the approved development.
3. Ms McCabe's evidence is that roof terraces are not a typical feature in this streetscape and this proposal is not contiguous, adjacent or proximate to similar structures. The site and surrounding sites are zoned R2 Low Density Residential, and, apart from the two residential flat buildings to the west, the street comprises two to three storey residential dwellings or dual occupancies. Ms McCabe notes that the majority of the development on the southern side of the street have elevated terraces to the street frontage that seek to optimise access to views of the Pacific Ocean to the north east. She opines that mutual overlooking due to topography and access to view corridors is appropriate in circumstances where the balconies and terraces are to the street frontage, but not where the terraces are located into the site. Further, she opines that, given the proximity of the building to its boundaries, and the nature of the openings on the boundaries, it is important that active spaces are located to the front and rear of the properties. Her view is that the exception provisions in cl 1.8 operate to permit a degree of mutual overlooking where there is already an overwhelming context of roof terraces on the surrounding street. She says that as no such context exists for the present site, the exception provisions do not apply.
4. Further, Ms McCabe's view is that the existing approved building has sufficient accessible and useable open spaces to accommodate the open space requirements for potential residents.
5. As a result of this evidence, Ms McCabe's position that the proposal does not satisfy the exception provisions in cl 1.8(e) as there are no other roof terraces "contiguous" to the site, it results in additional privacy and aural impacts greater than the application as approved, and is not designed and located to be used on an infrequent basis. Specifically, with respect to the definition of "contiguous", her position is that the roof terrace at 9 George Street does not meet the definition as it is near, but is not within close proximity.
6. Similarly, with respect to the principles in Super Studio v Waverley, Ms McCabe's view is that there are a sufficient number of different outdoor spaces available to use, views are enjoyed from both approved terrace areas, it would be open to Mr Brown to design an upper living area space, and the roof terraces introduce potential for noise and overlooking impacts to adjoining properties. As such, she opines that the roof terrace results in "avoidable and unnecessary" impacts, and fails to minimise those impacts.
7. In support of its position that the roof terrace at 9 George Street is not a development that is "contiguous to the subject site", the Council relies on a number of decisions of the Court. The first is the decision of Moore J in Hunter's Hill Council v Minister for Local Government [2016] NSWLEC 124, in which His Honour found (at [316-339]) that the word "contiguous", in the context of local government areas and the Local Government Act 1993, requires actual touching. In a decision with respect to permissibility in Robson v Tweed Council [2000] NSWLEC 170, Bignold J found that land was not contiguous with other land because it was separated "by the substantial creek" (see [24]).
8. However, a number of decisions of the Court do not support such a narrow interpretation of the word "contiguous". In Alexakis Building Pty Ltd v Waverley Council [2016] NSWLEC 1129, based on an earlier version of the WDCP 2012, O'Neill C accepted that the word "adjacent" should be construed loosely as being "near to" or "in the neighbourhood of". In Chiefari v Waverley Council [2017] NSWLEC 1567, Dixon C (as she then was) regarded the WDCP 2012 provision requiring developments containing a roof terrace to be contiguous as "ambiguous and arbitrary", and that it "cannot operate to displace a merit assessment which supports an approval of a proposal" (at [17]). She accepted that it means "near" and found that the clause was satisfied by private open space located on a site across the road (see [18]). The Council submits that this is in error, and that the word "near" in the definition is inextricably linked to the words "in close proximity" and as such the roof terrace at 9 George Street should not be considered as development that is "contiguous" to the site.
9. Finally, in support of the Council's position that the WDCP 2012 Amendment No 6 should be considered in determining the application, it relies on the principles in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and the decision of Talbot J in Aldi Foods Pty Limited v Holroyd City Council [2004] NSWLEC 253. In Aldi Foods v Holroyd City Council, Talbot J found as follows: "42 The most palpable inconsistency, however, is between the proposal and the long-term planning vision of the Neil Street Precinct Master Plan contained in the draft DCP. For this site the Master Plan shows the footprint of an eight-storey building following the line of a new road and swale. This is about as different from a single-storey supermarket as it is possible to be. While a draft DCP is not among the matters to be considered under s 79C(1) of the Environmental [Planning] and Assessment Act 1979, in this case it is an adjunct to the draft LEP and it is appropriate to take it into account as a matter of public interest. The question that arises is what planning principles the Court should apply to assessing a proposal, which is a permissible use, but which is antipathetic to the urban structure and built form envisaged in a Master Plan."
10. His Honour went on to outline the matters the Court "should have regard to" in considering the master plan. Relevantly, the last principle to be considered is "the extent of inconsistency between the proposal and the Master Plan. Would approval of the proposal frustrate the implementation of the Master Plan?"
11. The Council submits that the WDCP 2012 Amendment No 6 reflects the Council's policy to discourage roof terraces unless there is already a predominance of roof terraces in the area.

Mr Brown's position that the impacts are not unreasonable

1. Mr Brown's position, on the other hand, is that firstly, the roof terrace meets the exception provisions in cl 1.8(e), and secondly, that it meets the objectives of cl 1.8. Thirdly, Mr Brown says that the roof terrace offers additional amenity and has only minor impacts given the degree of mutual overlooking that already exists, and therefore meets the principles in Super Studio v Waverley. Fourthly, Mr Brown says that the WDCP 2012 Amendment No. 6 does not apply and little weight can be placed on it.
2. In support of his position, Mr Brown relies on the expert opinion evidence of Mr Boston. Mr Boston's evidence is that the immediate built form context of this particular site should be taken into account, including the recently constructed 4 storey residential flat building on the immediately adjoining property at 5 Bulga Road and an older 4 storey residential flat building with open at-grade parking at a lower level at 1 Bulga Road. Mr Boston points out that the topography of Bulga Road results in a stepped built form and streetscape outcome with development on the high side of adjoining properties able to obtain views and outlook over the roof of the properties on their low side. All properties are oriented to the north and east, and many have elevated terraces to take advantage of available views.
3. In this built form context, Mr Boston opines that firstly the provision of a roof terrace will not be perceived as inappropriate or jarring in the streetscape.
4. Secondly, with respect to privacy, he opines that in this built form context there appears to be an accepted trade-off between the attainment of views and the level of privacy which would otherwise "ordinarily be expected in a low-density residential area". He considers that the design and siting of the roof terraces, relative to the edges of the parapeted roof form, prevents any downward views into either the living areas or private open space areas of 9 Bulga Road on the low side of the subject site. Similarly, he opines that the built form and medium density land use of the residential flat building at 5 Bulga Road creates a relationship where there are elevated living areas and open space orientated towards the site from which views across the subject property are obtained, and views into the approved open space of the subject site. As such, he opines that privacy is already compromised by the elevated viewing areas.
5. Mr Boston considers that the exception provisions in cl 1.8(e) of the WDCP 2012, in particular the requirement in subcl (i) for developments contiguous to the subject site to include a roof terrace, operate to allow roof terraces where privacy is already potentially compromised by elevated viewing areas and where a compromise between the attainment of views and absolute privacy has been accepted. As such, he opines that the relationship between the proposed roof terraces and the residential apartments at 5 Bulga Road result in a mutual degree of overlooking that already exists, is an accepted compromise on privacy to achieve the attainment of views, and is anticipated by the exception provisions.
6. Thirdly, Mr Boston opines that the roof terraces' location relative to the view lines available from the residential apartments at 5 Bulga Road ensure that whilst visible, they will maintain a view sharing outcome consistent with Tenacity Consulting v Waringah [2004] NSWLEC 140.
7. Fourthly, Mr Boston indicated in the joint report that "it is conceded that no development contiguous to the site includes a roof terrace". However, at the conciliation he was shown the definition in the Macquarie Dictionary and now opines that the roof terrace at 9 George Street falls within the definition of "in close proximity without actually touching; near." He forms this opinion because, in his view, given that the development at 9 George Street shares a boundary with a development lot "touching" the subject site, there could be no other way in which it could be any nearer or closer "without actually touching".
8. Fifthly, Mr Boston's evidence is that the size, dimension and access arrangements through the master bedroom and through an operable hatch will ensure that the terraces "are only used for casual and infrequent activity and not as an extension of private open space or entertaining areas." As a result, he says that they will not generate any unreasonable noise impacts.
9. Finally, in relation to the principles in Super Studio, Mr Boston opines that the provision of the small roof terraces is not unreasonable given that the principal outdoor terraces for both subject dwellings are at ground floor level to minimise their impact and the only upper level terraces adjoin bedrooms. As such, he considers "the provision of small roof terraces to be acceptable with potential impacts from their casual and infrequent use significantly less than potential impacts were the principal outdoor entertaining area located at the first floor level."
10. Based on the above evidence, Mr Boston concludes that the proposed roof terraces satisfy the exception standards in C1 cl 1.8(e) of the WDCP 2012 and meet the objectives of C1 1.8.
11. In support of his position that the impacts of the roof terraces are not unreasonable, Mr Brown also relies on an undated letter of support from Mr Shulkin of 5 Bulga Road Pty Ltd, which states that "We have reviewed the plans and are happy to support the proposal".
12. Mr Brown submits that the language of the controls in cl 1.8 of the WDCP 2012 is concerned with minimising the impact of roof terraces, rather than proscribing them. He submits that the impact must be considered in the context of the built form of the area, which includes the two residential flat buildings, and roof terraces in George Street.
13. Mr Brown submits that the assessment report for the roof terrace at 9 George Street supports the position that the control is concerned with minimising the impacts of roof terraces rather than precluding them from being built. In particular, the assessment report shows that roof terraces are a common feature for new developments. Specifically, page 6 of the assessment report states as follows: "An assessment of the roof terrace within the locality revealed that 5 George Street has a relatively recent (2007) roof terrace approval, while a roof terrace was identified on the south side of George Street. A review of the aerial imagery revealed that although roof terraces are not the predominate character of the locality, roof terraces are a common feature for new residential developments. Accordingly, as roof terraces are common to new residential developments in Dover Heights the proposed roof terrace is supported in this instance. The proposed roof terrace is considered unlikely to result in unreasonable amenity impacts given the small· size of the roof terrace, generous side setbacks and the incorporation of privacy screening. The proposed roof terrace is supported with regards to visual and acoustic privacy considerations. The proposed roof terrace has been designed to be a subservient element to the pitched roof design, with the proposed access stairs open to the sky which reduces the visual bulk of the terrace. The roof terrace is located at the rear of the rear dwelling reducing visibility from George Street. Accordingly, the roof terrace is acceptable with regards to the roof design."
14. In determining whether the exception provision in cl 1.8(e)(i) has been satisfied, Mr Brown submits that the decisions of the Court in Alexakis Building Pty Ltd v Waverley Council and Chiefari v Waverley Council demonstrate that a broad approach should be taken to determining whether the roof terrace at 9 George Street is development that is "contiguous" to the site. In light of this, and based on the evidence of Mr Boston, Mr Brown submits that each of the exception provisions in cl 1.8(e) have been met.
15. Further, Mr Brown submits that the proposed roof terraces can be distinguished from the facts of Super Studio, as the roof terraces provide additional amenity by providing open space with views to the ocean that are not achieved by the balconies on the lower levels.

Submissions on s 4.15(3A) of the EPA Act

1. In light of the evidence that each of the exception provisions in cl 1.3(e) have been met, Mr Brown submits that s 4.15(3A)(a) applies such that the Court, in exercising the functions of the consent authority, cannot require more onerous standards than those required by cl 1.3(e). Section 4.15(3A) is as follows: (3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application. In this subsection, standards include performance criteria.
2. Further, Mr Brown submits that if I am not so satisfied that the standards have been met, subs (3A)(b) requires that the Court (in exercising the functions of the consent authority) is to be flexible in applying those provisions and is to allow reasonable alternative solutions to achieve the objects of those standards.
3. Mr Brown submits that although subs (3A) refers to development applications, and is not applicable through s 4.55 of the EPA Act, it should be applied to a modification application in the same way as it applies to development applications. To take any other approach, Mr Brown submits, would produce an absurd result whereby the subsection is applied in a different manner depending on the type of application.
4. The Council instead submits that s 4.15(3A) does not, in any stated or implied terms, apply to modification applications through the wording s 4.15(3A) itself or by s 4.55 of the EPA Act. As such, the Council submits that the Court should be cautious in importing words into the subsection that are not there. Notwithstanding this, the Council agrees that the Court should nonetheless take a flexible approach to the application of the relevant provision under the WDCP 2012. The Council relies on Zhang v Canterbury City Council [2001] NSWCA 167, in which the Court of Appeal considered that whilst a development control plan is not an "environmental planning instrument", a relevant provision in a development control plan that is pertinent to the application was "entitled to significant weight in the decision making process but was not, of course, determinative" (at [75]).

The impacts are reasonable

1. Clause 1.8 of C1 of the WDCP 2012 is therefore entitled to significant weight and is the focal point in determining the present application. In considering the terms of cl 1.8 in the present proceedings, I accept the evidence of Mr Boston that the immediate built form context of this particular site should be taken into account, including the design of the adjacent residential flat building at 5 Bulga Road. Although I consider that there is a loss of privacy that will be occasioned to the fourth floor of the adjacent residential flat building by the proposed roof terraces, I do not consider that the loss is "unreasonable" or "unacceptable" in the built form context of the site.
2. Firstly, I accept that each of the exception provisions in cl 1.8(e) is met. I am satisfied that although roof terraces are not a typical feature in the streetscape, 9 George Street is a development "contiguous to the subject site" that includes a roof terrace, in satisfaction of subcl (e)(i). For the reasons expressed by Mr Boston with respect to there being no other development that is near "without actually touching", I accept that 9 George Street meets the definition of "contiguous" as it is "in close proximity without actually touching" and "near" to the site. The context in which "contiguous" is used, within the WDCP 2012 in provisions that concern minimising the impact of roof terraces, can be easily distinguished from the contexts considered in Hunter's Hill Council v Minister for Local Government and Robson v Tweed Council, in which the Court was considering local government boundaries and permissibility respectively, and considered "contiguous" required actual touching.
3. Similarly, I am satisfied that the roof terraces are consistent with subcl (e)(ii) of the exception provisions. Whilst I am of the view that there are amenity impacts caused by the roof terraces, including overlooking, those impacts are not unreasonable. I accept the evidence of Ms McCabe that mutual overlooking due to topography and access to view corridors is generally appropriate in circumstances where the balconies and terraces are to the street frontage, and that active spaces are generally located to the front and rear of the properties. However, the built form context of Bulga Road does not have that consistent form. Instead, there are already views across and into the middle of the site from the fourth floor of 5 Bulga Road. Indeed, the floor to ceiling glass windows of the fourth floor of 5 Bulga Road create a significant degree of mutual overlooking where residents of 5 Bulga Road can overlook the private open space of the approved (but not constructed) dual occupancy, and are also in an elevated, exposed position that compromises their privacy when viewed from the site. As such, I accept the evidence of Mr Boston that the relationship between the proposed roof terraces and the residential apartments at 5 Bulga Road result in a mutual degree of overlooking that already exists, is an accepted compromise on privacy to achieve the attainment of views, and is anticipated by the exception provisions. With respect to overlooking to the east toward 9 Bulga Road, I accept the evidence of Mr Boston that the design and siting of the roof terraces, relative to the edges of the parapeted roof form, prevents any downward views into the living areas or private open space areas of 9 Bulga Road. I also accept Mr Boston's opinion that there will be no unreasonable noise impacts given the low frequency of use arising from the size of the terraces and access arrangements through the master bedroom and through an operable hatch. Further, in terms of view loss to 5 and 3 Bulga Roads, both Mr Boston and Ms McCabe agree that the roof terraces are sited so as to minimise any potential view loss. For these reasons, I am satisfied that the roof terraces will not result in unreasonable amenity impacts.
4. I am also satisfied that the proposed roof terraces satisfy subcll (e)(iii), (iv) and (v). The amended plans show roof terraces of 15m2 in area, they are not an extension of private open space or entertaining areas, the nature of the access means they will only be utilised for casual and infrequent activity, and the access is provided within the envelope of the main building, with Ms McCabe and Mr Boston agreeing on the design and detail of the hatch that will ensure that it will open to a height around that of the balustrade.
5. For those reasons, I am satisfied that each of the elements of the exception provisions in subcl (e) have been met.
6. Secondly, the principles in Super Studio weigh in favour of granting the modification application. In circumstances where the principal outdoor entertaining areas of the dwellings are located on the ground floor, I accept that the proposed roof terraces offer additional amenity by allowing an elevated terrace with uninterrupted views. Without such a terrace, those views can only be enjoyed from terraces that are an extension of a bedroom. I accept the evidence of Mr Boston that the provision of these small roof terraces offer that additional amenity whilst also having acceptable impacts from their casual and infrequent use.
7. Thirdly, there is no "palpable inconsistency" between the merit assessment under the applicable WDCP 2012 provision and the terms of the WDCP 2012 Amendment No 6 that would warrant refusal of the application in the public interest. It is clear that WDCP 2012 Amendment No 6 further confines the exception provisions so that the circumstances in which a roof terrace is appropriate are narrowed. WDCP 2012 Amendment No 6 also inserts objectives that are consistent with the new exception provisions, and elevates the Super Studio planning principles to a standard. Despite so doing, approval of the proposed roof terraces pursuant to the WDCP 2012 Amendment No 5 will not frustrate the implementation of the WDCP 2012 Amendment No 6. It is quite distinct from Aldi Foods v Holroyd City Council, in which the type of development sought was entirely inconsistent with the Master Plan contained in the draft DCP, and where approval of the development would frustrate the implementation of the Master Plan. Instead, both the WDCP 2012 Amendment No 5 and the WDCP 2012 Amendment No 6 allow roof terraces in defined and specific circumstances, and allowing a roof terrace pursuant to the former will not frustrate the application of the latter. As such, the WDCP 2012 Amendment No 6 does not form a basis upon which I consider it appropriate to refuse the proposal for the roof terraces.
8. For these reasons, I consider that there are sufficient merit considerations that warrant approval of the roof terraces.

Do the roof terraces create an undesirable precedent?

1. Consistent with the concerns of Ms Ibrahimi, the Council submits that the proposal is not in the public interest and should be refused as it would set an undesirable precedent in the locality. The Council relies on the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75. In this decision, Lloyd J refers to the concept of a consent operating as a precedent and says (at [28]): "…if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration."
2. The Council also relies on the Court of Appeal decision in BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274, in which Mahoney JA found (at 278, Meagher JA and Powell JA agreeing) that it is open on a merit appeal concerning a development application "to see a departure from the consistently applied policy… as "unjustifiable" because, inter alia, it would create "the risk of establishing a precedent" of the kind referred to."
3. The Council's position is that, even if the Court was to find that the roof terraces are acceptable on their merits, their approval would create a precedent that would lead to further applications for roof terraces. The Council says that, consistent with the decision in BP Australia Ltd v Campbelltown City Council, the Court should refuse the application on the basis that it would create this precedent.
4. I do not accept the Council's position. The fact that an approval might form a precedent is not sufficient, of itself, to warrant refusal. Rather, to warrant refusal, the precedent must be undesirable in some way. In both Goldin v Minister for Transport and BP Australia Ltd v Campbelltown City Council each Court found that, for there to be an undesirable precedent, there must be something "objectionable" about the development in itself. In Goldin v Minister for Transport, it was the "undesirable visual impact on a largely undeveloped shoreline" (at [34]) and in BP Australia Ltd v Campbelltown City Council it was that the development was "an unjustifiable departure from the consistently applied planning policy of protecting Pembroke Road from new development having direct vehicular access" (at 277).
5. There are three reasons as to why the present application does not create an undesirable precedent, as distinguished from Goldin v Minister for Transport and BP Australia Ltd v Campbelltown City Council.
6. Firstly, I have determined that the impacts of the roof terraces are not unreasonable or unacceptable. Accordingly, there is nothing about the application that makes it objectionable of itself, and it therefore cannot be described as creating an "undesirable" precedent.
7. Secondly, the text of the WDCP 2012 does not reflect a policy that proscribes roof terraces. Instead, it allows roof terraces if the exception provisions are met. Given that I have found that those exception provisions are satisfied, the approval of the roof terraces is consistent with the WDCP 2012 (Amendment No 5) and cannot, therefore, create a precedent that can be described as undesirable or objectionable in some way.
8. Thirdly, there are already roof terraces within the locality on George Street. Accordingly, any precedential effect of an approved roof terrace has already been established by the approval of roof terraces at 4 and 9 George Street. The present circumstances are therefore distinguished from both Goldin v Minister for Transport and BP Australia Ltd v Campbelltown City Council on that basis also.

Outcome of the appeal

1. I have therefore determined that it is appropriate to grant the modification to the development consent.
2. The Court orders that: 1. Leave is granted to the applicant to amend the modification application in accordance with Drawing A7 Proposed Roof Terrace Plan Revision D dated 22 November 2018 and Drawing A11 East Elevation Revision D dated 22 November 2018. 2. The appeal is upheld. 3. The application to modify development consent No 116/2014 by the inclusion of new roof terraces to the approved dual occupancy at 7 Bulga Road, Dover Heights, is granted. 4. Development consent No 116/2014 for the demolition of an existing dual occupancy and the construction of a new dual occupancy at 7 Bulga Road, Dover Heights is now subject to the consolidated, modified conditions of consent at Annexure A. 5. The exhibits are returned, except for exhibits A and 3. ………………………. Commissioner Gray Annexure A (186 KB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 December 2018