Buildworx (Australia) Pty Ltd v Lane Cove Council

Land and Environment Court (NSW)|2015-12-14

Judgment

This is an appeal under s 97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of an application made under s 96(2) of the Act (72/2013B) to modify a development consent granted for construction of a dwelling house at 51 Northwood Road Northwood (the site).
Development consent No 72/2013 (the consent), determined on 26 November 2013, approved "the construction of a dwelling house on four levels, a swimming pool and a front fence". Conditions 2 - 12 imposed on the development consent required design amendments to be made before the issue of a construction certificate, stating the reasons, as follows: 1. Condition 2: replace the pitched roof with a flat roof (reduce visual impact); 2. Condition 3: privacy measures - privacy screen 1.7m above FFL along the south side of the rear deck and both rear terraces; kitchen, dining room windows on south elevation, and lounge window on north elevation, to have vertical louvres or obscure glass or high level sill; and native screen planting to 1.7m height above FFL of bedroom 4 (reduce overlooking of 49 and 53 Northwood Road); 3. Condition 4: setback privacy screen to ground floor planter 1.5m from north side boundary (compliance with cl 1.3.2a) II of the Lane Cove Development Control Plan); 4. Condition 5: carport slab to be lowered by at least 250mm to an RL of not more than 49.93, setback minimum of 1.2m from south boundary, and carport to remain open in design with minimum height and clear-style safety balustrade on south side (reduce visual impact and ensure compliance with cl 1.3.2a)I of DCP); 5. Condition 6: swimming pool concourse to be setback minimum of 3.7m at southwest corner and 2m at northwest corner and remainder of concourse to link up, and privacy screen 1.7m high above concourse at both ends (reduce overall impact on 49 and 53 Northwood Road and ensure compliance with cl 1.10.1g) of the DCP); 6. Condition 7: useable depth of rear ground floor terrace not to exceed 3m at any point (restrict entertainment potential and adverse acoustic impact and ensure compliance with cl 1.8.2c) of the DCP); 7. Condition 8: return of front boundary fence along south boundary not to exceed height of 900mm (reduce potential adverse impact on 53 Northwood Road); 8. Condition 9: dwelling house undercroft to be fully enclosed on south side with brick or masonry and side setback area to be landscaped (reduce overall impact on 53 Northwood Road); 9. Condition 10: rear lower ground floor level deck and ground floor level terrace to be "squared-off" (reduce overall impact on 53 Northwood Road); and 10. Condition 12: exposed sides of swimming pool to be enclosed with concrete finish and screened with new plantings (reduce visual impact on adjoining neighbours).

Proposed modifications

The Statement of Support by SJB Planning dated July 2015 (ex A) describes the modifications for which approval was sought in the following terms:

Various internal layout changes
Various external changes
Amendments to window locations and dimensions
Amendments to wall alignment
Modifications to planter boxes
Amendments to privacy screening
Deletion of first floor pergola and extension to roof
Deletion of condition 7
Modification to wording of conditions 1 and 5.

The proposed modifications include modifications for each of the lower ground floor, ground floor and first floor levels and the roof. The application proposed the deletion of Condition 7, "given that the proposal seeks to provide a terrace on the ground level with a depth greater than 3.0m", and the modification of Conditions 1 and 5 "to facilitate amended plans and provision of privacy screening and an access gate to the carport".
The amended plans for which leave was granted on 19 February 2016 (ex B) make a number of amendments to the plans provided with the s96 application, detailed in a Schedule of Amendments. The amendments to the CC plans are described by the parties' planning experts in their Supplementary Joint Planning Report dated 16 February 2016 (ex 3) in the following terms, identified as either "as built" or "proposed": (1)Remove WIR from bedroom 4 on lower ground floor and demolish masonry wall to Plant area - Proposed change amendment to Drawing 12-597/6B required to indicate demolition of plant room wall; (1A)Bedroom 4 door location moved east - As built; (2)Re-align lounge and bedroom 4 walls to match CC - As built; (2A)Amend height of bedroom 4 window - As built; (3)Reduce the laundry and bathroom dimensions to match CC - Proposed change; (4)Reposition the bathroom window - as built; (5)Reposition the door into the plant room - As built; (6)Extend excavation and add door and louvre vent to air-conditioner space - As built; (6A)Install new internal walls to create separate plant, air-con plant rooms - As built; (7)Reduce the length of bedroom 2 and bedroom 3 by 595mm from approved CC dimensions - As built; (7A)Amend alignment of internal walls to bedroom 2, bedroom 3, bath and laundry - As built; (8)Reduce the height of windows to bedroom 2 and bedroom 3 by 800mm - As built; (9)Reduce the length of the lounge room, open deck and stairs on the lower ground floor by 215mm - As built; (10)Reduce the length of the ground floor terrace to match approved CC dimensions - Proposed change; (11)Reduce the width of the kitchen window from 3600mm to 2800mm - As built; (12)Increase the depth of the lounge room by 950mm into the terrace area - As built; (13)Increase the width of the planter next to the study from 1830mm to 1940mm - As built; (13A)Re-orientation of privacy screen louvres - Proposed change; (14)Install a window to the foyer 1300H x 610W - As built; (15)Install a skylight in the entry roof - As built; (16)Install an overhead security gate to the carport - 2/3 open - proposed; (17)Install a 1/7m high privacy screen to the southern side of the carport - As built; (18)Increase the depth of the study from 2100mm to 2550mm - As built; (19)Reposition the lounge room window on the northern elevation - As built; (20)Install an open pergola to the terrace of the ground floor 3200mm out from the external wall - Proposed change; (20A)Increase ground floor rear terrace from 3000mm to 3900mm - note refer to Attachment D; (21)Reduce the width of the hallway at the top of the stairs from 1300mm to 1060mm -As built; (22)Increase the depth of the power room from 1600mm to 2540mm - As built; (23)Install extra planter boxes to the ground floor terrace - As built; (23A)Reduce the length of the privacy screen from 3000mm to 2070mm - As built; (24)Install a 600mm high glass balustrade on a 400mm plinth to the western side of the ground floor terrace - proposed; (25)Provide a circular light shaft in the roof of first floor terrace - As built; (26)Decrease the pergola to the first floor rear terrace - proposed; (27)Increase depth of bedroom 1 by 980mm - As built; (28)Change the shape of the northern window to bedroom 1 - As built; (29)Change the layout of the fixtures to bedroom 1 ensuite - As built; (30)Increase the depth of the living room by 260mm on the first floor level - As built; (31)Install a window to the stairwell on the southern side elevation - As built; (32)Extend the stairwell walls by 980mm to allow minimum head height clearance - As built; (33)Increase the depth of the WIR to bedroom 1 from 1600mm to 2190mm - As built; (33A)Delete proposed extension to first floor terrace areas - Proposed change; (34)Delete the centre brick pier from the front fence - As built; (35)Full height privacy screen to the southern terrace on the lower ground floor - Proposed change.
Attachment D (referred to in (20A)) is the amended ground floor plan, discussed below.

Issues

In its Statement of Facts and Contentions (ex 7) the Council contended that the modification application must be refused as the development as modified is not substantially the same as the development for which consent was originally granted.
The Council contended that the modification application should be refused because: 1. the height of the modified development is excessive and does not comply with the applicable development standard in cl 4.3 of the Lane Cove Local Environmental Plan 2009 (the LEP) (Contention 2) or the provisions of cl 1.7.1 of the Lane Cove Development Control Plan (the DCP) (Contentions 2, 3); 2. the floor space ratio (FSR) of the modified development is excessive and does not comply with the development standard in cl 4.4 of the LEP (Contention 4); 3. the depth of the rear terrace on the ground floor is excessive and does not comply with cl 1.8.2(c) of the DCP (Contention 5); 4. the modified development involves excessive cut and fill and does not comply with cl 1.6(d) and (e) of Part C.1 of the DCP (Contention 6); 5. the bulk and scale of the modified development is excessive as a result of excessive height and FSR and the design of the development (Contention 7); 6. the modified development results in loss of views and amenity to the neighbouring property at 49 Northwood Road (Contention 8); 7. the modified development has an unacceptable impact on the amenity of neighbouring properties in terms of overshadowing (Contention 9), and privacy (Contention 10); 8. the modified development is not compatible with the existing environmental character, amenity and environmental quality of the locality (second numbered Contention 8), and is an overdevelopment of the site due to height, bulk and scale, and resulting adverse amenity impacts on neighbouring properties (second numbered Contention 9); 9. approval would set an undesirable precedent for similar inappropriate development in the area (second numbered Contention 10); and 10. approval is not in the public interest having regard to the contentions raised in the proceeding and the submissions received (Contention 11).
The applicant contended in reply (ex C) that the Court could be satisfied that: 1. the development as modified is substantially the same as that for which consent was originally granted; 2. the height is not excessive and complies with the development standard in the LEP, complies with the relevant objectives of the DCP and is justified in the circumstances; 3. the FSR is not excessive and does not warrant refusal of the application; 4. the ground level balcony is not excessive and complies with the DCP; 5. the application does not seek approval for placement or movement of fill and the extent of cut is not antipathetic to the objectives of the relevant provisions of the DCP; 6. the building height and FSR do not result in a building that has excessive or unacceptable bulk and scale; 7. the modified development does not result in a reduction in amenity or unreasonably restrict water views from 49 Northwood Road; 8. the minor increase in shadows falling on neighbouring properties is not on useable recreation areas or habitable rooms; 9. the modified development does not adversely impact on amenity in regards to privacy; 10. the modified development is consistent with the relevant aims of the LEP and objective of the DP in relation to character; 11. the modified development is not an overdevelopment of the site or a development with excessive bulk and scale; 12. the development is not objectionable in itself and approval would not set an undesirable precedent; and 13. the modified development is consistent with the public interest.
As a consequence of the amendments to the plans, the Council's position at the conclusion of the evidence was that the first contention, that the development as modified is not substantially the same as that for which consent was granted, was not pressed; the amended plans comply with the maximum permitted FSR; and based on the expert evidence the contentions relating to privacy and other impacts are not pressed. The only remaining contention at issue was contention 11, the public interest: the Council's position was that this contention is pressed having regard to the matters raised by the objectors.

Planning controls

The site is in the R2 Low Density Residential zone under the LEP. The aims of the LEP include: (b) to preserve and, where appropriate, improve the existing character, amenity and environmental quality of the land to which this Plan applies in accordance with the indicated expectations of the community, (c) in relation to residential development, to provide a housing mix and density that: (i) accords with urban consolidation principles, and (ii) is compatible with the existing environmental character of the locality, and (iii) has a sympathetic and harmonious relationship with adjoining development, … (f) in relation to conservation: … (iii) to control all new buildings to ensure their compatibility with surrounding existing built form and natural environmental character, and …
The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area. • To encourage new dwelling houses or extensions of existing dwelling houses that are not highly visible when viewed from the Lane Cove River or Parramatta River. • To ensure that landscaping is maintained and enhanced as a major element in the residential environment.
Clause 4.3, and the Height of Buildings Map, provide for a maximum height of a building as 9.5m. The objectives of cl 4.3 are: (a) to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, and (b) to maximise sunlight for the public domain, and (c) to relate development to topography.
Clause 4.4 provides for a maximum FSR of 0.5:1. The objectives of cl 4.4 are: (a)to ensure that the bulk and scale of development is compatible with the character of the locality.
Part B of the DCP provides General Controls, which include cl B.4 View Sharing.
Part C of the DCP provides controls for Residential Development, with Part C.1 Dwelling Houses and Dual Occupancies. Relevant provisions are clauses 1.1 Objectives for Dwelling Houses and Dual Occupancies; 1.6 Cut and Fill; 1.7 Building Design, including 1.7.1 Height; 1.8 Amenity, including 1.8.1 Solar Access and Overshadowing, and 1.8.2 Privacy - Visual and Acoustic.

Objector evidence

The submissions made by objectors on site included concerns as to the number of storeys, height, size and bulk, overshadowing, impacts on privacy and views, inconsistency with the character of Northwood Road, and the process by which works have been constructed contrary to the development consent. Agreed notes of those submissions are exhibit 6; and additional written submissions are exhibit 5.
The submissions received by the Council in the course of its consideration of the application are in evidence (ex 1, tab 7). Those submissions include objections to the differences between the original approval and the building as constructed and the application for retrospective approval, non-compliance with requirements relating to FSR, number of storeys, excessive bulk height and scale, loss of views, impacts on privacy, overshadowing, and visual impact on the streetscape and in district views.
The written submissions made in response to the amended plans are exhibit 4. In summary, those submissions maintain objections to the retrospective application for approval for works already undertaken, failure to comply with the conditions of the consent, the bulk and scale of the development, privacy impacts, overshadowing, and difficulties in the plans.

Expert evidence

Expert planning evidence was provided on behalf of the applicant by Mr Michael Baker and on behalf of the Council by Mr Kerry Nash. Mr Baker and Mr Nash prepared two joint reports, the first dated 10 December 2015 (ex 2), and a subsequent report dated 16 February 2016 addressing the amended plans (ex 3).
In their supplementary joint report (ex 3) the experts agreed that as a result of the amendments: 1. the building is no greater than 2 storeys in height at any one point; 2. the building has a gross floor area of 273.238sqm, down from 325.736sqm in the s 96 application, with a FSR of 0.5:1 which complies with the LEP development standard; and 3. contentions 4 (FSR), 6 (cut and fill, 8 (view loss), 9 (solar access and overshadowing) and 13 (precedent) were no longer in contention.
Mr Nash's evidence was that the amendments have addressed fundamental questions raised in his earlier discussion of whether the development as modified is substantially the same as the development the subject of the original consent. Bedroom 4 has been reduced in size and so at no point is the building more than 2 storeys. The removal of the 3 storey element returns the building to a 2 storey building consistent with the original consent; the reduction in gross floor area achieves compliance with the FSR control; the cutting back of the rear terrace slab will reduce the visual impact and bulk of the building when viewed from Holden Street and adjoining properties and go some way to reflecting the footprint of the building as originally approved, and the removal of the extended terraces on the first floor level will remove overlooking/privacy impacts on 49 and 53 Northwood Road and return the layout of the upper level to be somewhat similar to that approved by the Council. While his concerns that the dwelling as built did not reflect the purpose of conditions 2 and 10 remained valid, and the increases in the building footprint at each level had increased the bulk and scale of the building, in his opinion with the changes to reduce the dwelling to 2 storeys in height at any one point, compliance with the FSR control, the cutback to the rear ground floor terrace slab and removal of the expanded terraces at the upper level indicated that the application was now materially and essentially the same development as that approved by Council.
The experts addressed the issue of the height of the building (contention 2) at 3.2 and Table 2 in the first joint report, noting an increase in height ranging from 50mm to 218mm from that in the CC plans at seven locations, and a reduction of 150mm-350mm from the CC plans at two others. While Mr Nash had noted that the numerical non-compliances were relatively minor, in his opinion the resultant built form was not consistent with the objectives of the standard and contributed to adverse amenity impacts. In the supplementary joint report (ex 3, p 6) the experts noted that the reduction in the depth of the proposed pergola on the ground floor rear terrace reduces the height of the pergola because of the sloping nature of the site. Mr Nash had earlier expressed the opinion that the increase in building height resulting from the pergola on the ground floor rear terrace would have an adverse visual impact when viewed from 49 Northwood Road and possibly from 2A Holden Street; following the amendment to the plans, his evidence was that the reduction of the depth of the pergola so that it corresponds to the western end of the privacy screen on the northern edge of the ground floor terrace will largely remove its visual impact when viewed from 49 Northwood Road, and the non-compliance of part of the pergola structure with the height control will not introduce adverse impacts on 49 Northwood Road or when viewed from Holden Street.
The experts considered the DCP requirements for wall height (contention 3) at 3.3 and Table 3 of the first joint report (ex 2), agreeing that a maximum wall height of 7m applies to the site. Table 3 notes the exceedances of that control; the experts differed as to whether the increase in wall heights altered the bulk and scale of the building or its visual dominance over that approved under the CC. Mr Baker's opinion was that the increase in wall heights did not significantly alter the bulk and scale or visual dominance of the building over that approved under the CC, when viewed from Holden Street or the neighbouring properties. In oral evidence, on consideration of the amended plans, Mr Nash concluded that notwithstanding the numerical non-compliance, given the constraints of the site and the consequences of condition 2 of the original consent, the outcome is not antipathetic to the objectives of the control.
In relation to balcony depth (contention 4), the experts agreed (ex 3, 3.4) that the amendments made to the ground floor rear terrace by cutting back the projecting slab and rationalising the internal dimensions, have addressed this issue and in their opinion the depth of the balcony is not a contention.
In their first joint report the experts agreed (ex 2, p 16) that the modifications did not alter the bulk and scale of the development when viewed within the Northwood Road streetscape, and that the additional excavation at lower ground floor level and the addition of the planter boxes along the northern and southern sides of the ground floor terrace did not increase the bulk and scale of the building. They agreed that the extension of the ground floor slab towards the rear of the site increased the length of the building when viewed from that part of Holden Street generally and from the rear of Nos 55 to 59 Northwood Road. Mr Nash considered that removal of that portion of the ground floor slab beyond that approved in the CC would ameliorate the visual bulk of the building when viewed from Holden Street and the adjoining residences and remove the potential for the planter box to be converted to usable terrace at some future time. The amended plans have cut back the extended terrace area and modified the design of the proposed pergola; and in their subsequent joint report, the experts agreed (ex 3, p 7) that bulk and scale had now been addressed.
In relation to privacy (contention 10), in their first joint report (ex 2, 3.10.1) the planners agreed that the screen erected on the northern edge of the first floor off the bedroom 1 terrace provides sufficient privacy from the first floor terrace toward 49 Northwood Road. They agreed that the proposed use of the first floor slab for an additional terrace area has the potential for overlooking toward the rear of 49 Northwood Road and to the south toward the elevated rear balcony of 53 Northwood Road; that the ground floor lounge room high sill window in the northern elevation has no privacy impact for 49 Northwood Road; and that the window of bedroom 4 has little privacy impact on 53 Northwood Road given it is a bedroom window and is below the height of the elevated balcony at the rear of 53 and that landscaping is required to be provided in front of this window. They agreed that the privacy screen as currently installed on the northern elevation outside of the ground floor internal planter still enables a line of sight from the study towards the lounge room windows of 49, and that if this screen is reinstalled so that the louvres are re-oriented to the north-east this line of sight would be removed.
In the second joint report (ex 3, 3.6) the experts agreed that the proposed modification of the privacy screen on the southern edge of the lower ground floor level deck from a 1.7m height x 3m long privacy screen to a full height screen to the underside of the slab x 1.6m long privacy screen results in an improved privacy outcome for the neighbours at 53 Northwood Road to the south.
The experts agreed that the deletion of the proposed enlarged terrace area over the roof slab joining the approved first floor balconies removes the potential to overlooking of 49 and 53 Northwood Road.
In oral evidence Mr Nash commented that obscure glazing for the kitchen window would be preferable to louvres which, while minimising overlooking to 53 Northwood Road, would block light. The applicant has agreed to that amendment (now incorporated in drawing 12-597/7E).
The experts agreed (ex 3, 3.7) that character (contention 11) was only an issue when viewed from Holden Street, associated with the extended terrace, associated proposed pergola and extended terraces on the upper level. They agreed that the amendments made to the ground floor rear terrace to cut back the extended terrace area, the proposed modified design of the pergola and the deletion of the upper level extended terraces had addressed this issue. They agreed (ex 3, 3.8) that the amendments to the plans that had reduced the FSR of the building to comply with the controls and the reduction in the length of the ground floor terrace had reduced the bulk, perceived height and building depth, such that they did not consider the building to be an overdevelopment of the site (contention 12).
In oral evidence Mr Nash stated that the two key elements of concern for him had been the 3 storeys and the increase in FSR. There is now no part of the building more than 2 storeys, and the reduction in gross floor area means that the building is consistent with the FSR controls. In terms of views, the offending element had been the projecting ground floor slab; that has now been cut back, as evident in photographs taken by Mr Brown on 11 February 2016 (ex D). That is the most significant element in terms of visual bulk from Holden Street, and also has the benefit of minimising potential use of the slab. The proposed linkage between the two terraces on the roof has now gone, which would have introduced overlooking to 59 and 43 Northwood Road. In his opinion the issues of concern for FSR (contention 4), cut and fill (contention 6), view loss (contention 8), solar access and overshadowing (contention 9) and precedent (contention13), have been resolved.
The planners addressed in their supplementary joint report the requirements of conditions 2-12 of the original consent, shown on the plans at Attachment E and Attachment F of the supplementary joint report (ex 3). In Mr Nash's opinion the Council's requirement in condition 2 for a flat roof was naïve in that it underestimated the structural requirements for a flat roof with adequate fall for drainage purposes and any parapet required to screen the roof. That requirement resulted in an increase in height compared with the original gutter line of the pitched roof increasing the visual bulk and overshadowing impacts of the building. The experts agreed that application of this condition by the Council triggers a greater bulk at the original gutter line of the pitched roof, contrary to the intent of the condition. The s 96 application does not seek to modify the carport level (condition 3), which was approved under the CC. In relation to the height of the carport slab, while the intent of the first bullet point in condition 5, which provides for a lowering by 250mm, appears to be to require a reduction in height of the car slab, the wrong RL is quoted; and the existing design complies with the required RL.
The planners differed in their interpretation of condition 10 which required that the rear lower ground floor level deck and ground floor level terrace "are to be squared-off". Mr Brown interpreted this to be (ex 3, 4.5.4) that the whole of the deck is to be squared off, so that it reduces the perceived impact of the angled alignment of the deck/terrace and the associated angled rear alignment of the dwelling ensuring that the outlook is along the length of the site rather than towards the boundary of 53 Northwood Road. In his opinion the squaring off of the whole of the deck reduces the potential privacy impacts on the neighbours at 53. The difference in interpretations is demonstrated by the annotations on drawing 12-597/7 in Attachments E and F to exhibit 3. Regardless of which interpretation of condition 10 is correct, the CC plans show on the northern side of the terrace a 1.7m high privacy screen extending 3m out from the lounge, with a planter box a further 2.5m out. The amended s 96 plans propose the terrace at 3.9m at the northern side, and 3m at the southern end, with a privacy screen of 3m on both sides. Mr Nash's evidence was that it is preferable not to extend the northern privacy screen to 3.9m, as that would have impacts on the view corridor for 49 Northwood Road. In his opinion the dimensions of the privacy screen and pergola on the terrace balance privacy with the retention of the view for 49 across to the river, which is a highly valued view. Mr Nash was of the opinion that privacy is addressed for 49 Northwood Road.

Consideration

Section 96(2) of the Act enables modification of a development if the consent authority is 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", and if the application has been properly notified and any submissions are considered. Section 96(3) provides that in determining an application for modification of a consent, the consent authority must take into consideration such of the matters referred to in s 79C (1) of the Act as are of relevance to the development the subject of the application.
The modification application seeks retrospective planning approval for elements of the building that have not been constructed in accordance with the approved plans, and approval for further changes to the development. The fact that development has been carried out is not a barrier to approval being granted in an application under s 96 of the Act: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240. It is no part of the assessment required by s 96(3) of the Act that works contrary to the conditions of the development consent may have been undertaken on the site. The applicant accepts that it will probably require a building certificate under Part 8 of the Act before an occupation certificate can be issued, and the issue of structural adequacy of the works is a matter for that application.
There are two steps to be undertaken in the assessment of this application. First, the threshold question of whether the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted must be considered, having regard to the amended s 96 plans now before the Court (ex B), and the development consent as determined by the Council on 26 November 2013, including the design amendments required by conditions 2 to 12.
Secondly, if that requirement is satisfied, an assessment of the merits of the modification application in accordance with s 96(3) of the Act is required. The assessment of the amended s 96 plans now before the Court (ex B) must be undertaken having regard to the CC plans, those plans being taken to form part of the development consent pursuant to 80(12) of the Act, which provides: (12) Effect of issuing construction certificate If a consent authority or an accredited certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 96).
In Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 the Court of Appeal considered s 80(12): 201 …It provides relevantly that if an accredited certifier issues a construction certificate, the certificate and any plans and specifications issued with respect to that certificate are taken to form part of the relevant development consent, other than for the purposes of s 96. 202 In this case, an accredited certifier issued the CCs. They are valid, at least until set aside. The plain words of s 80(12) have the effect of deeming the plans and specifications issued by the accredited certifier with respect to the construction certificate to be part of the DA. To the extent that there is an inconsistency between those plans and specifications and the plans and specifications approved in the DA, the former must prevail. The legislation accommodates the possibility that an accredited certifier will issue a construction certificate in breach of cl 145(1) and s 109F(1) by according paramountcy to the plans and specifications referred to in the construction certificate. 203 Neither party made any point of the concluding words of s 80(12) "(other than for the purposes of section 96)". The words do not, in any event, detract from this construction of s 80(12). Section 96 of the EPA Act permits a consent authority to modify a consent. The evident purpose of the quoted words is to ensure that on an application under s 96, a subsisting construction certificate does not prevent the consent authority exercising its powers.

Whether the development as modified is substantially the same

The requirement that the consent authority be 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 is a condition precedent to the exercise of the power to modify a consent: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342 at 347. While the Council no longer presses its first contention, and the experts have now reached agreement on that issue, the Court must be satisfied that the development as modified is substantially the same as that for which consent was granted.
The power to modify a consent is a power "to alter without radical transformation": North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474. A qualitative and quantitative comparison between the development as modified and the development as originally approved is required, and the result of that comparison must be a finding that the modified development is "essentially" or "materially" the same as the approved development, as held by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309: 55. …The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).
Table 1 in the supplementary joint report (ex 3) provides a comparison of the development between the approved consent, the CC, the s96 as lodged, and the amended s 96 plans. The comparison for relevant aspects of the development between the development consent as originally granted and the amended s 96 plans is as follows: 1. Building height (RL): varying 56.473 and 56.573 to pitched roof ridge - now 56.07 to flat roof parapet; 2. Building height (m): 9.2m to pitched roof ridge - now 10.07m to flat roof parapet; 3. Number of storeys: 2 - now 2; 4. GFA: 242sqm - now 273.238sqm; 5. FSR: 0.44:1 - now 0.5:1; 6. Building length on Section A-A inclusive of terrace slabs: (lower ground) 13.4m - now 16.7m, (ground floor) 20.8m - now 21.3m, (first floor) 13.3m - now 14.4m; 7. Building length on Section B-B inclusive of terrace slabs: (lower ground) 10.2m - now 18.1m, (ground floor) 16.3m - 17.9m, (first floor) 12.1m - now 12.9m.
The comparison in Table 1 makes clear that there are a number of quantitative changes, in particular in relation to building height, and the length of the building including the terraces. I accept the agreed expert evidence that the increase in building height is in fact a consequence of the amendment required to the roof by the terms of the original consent. I accept the agreed expert evidence as to the effect of the privacy screening required by the consent, and as now proposed in the modification. I accept the evidence of Mr Nash that the privacy screening for the north side of the ground floor terrace achieves privacy for 49 Northwood Road while retaining the view corridor for that property to the river. I accept Mr Nash's evidence that the rear terrace slab, while extending further than that originally approved, in the form proposed in the amended s 96 plans, reflects the footprint of the building as originally approved; and that the upper level terraces at the rear provide a similar layout to that in the original consent. While the GFA and thus FSR have increased, the FSR is still compliant with the development standard in the LEP.
As noted above, the design changes required by conditions 2 to 12 of the development consent were stated to be to reduce the visual impact of the development, to reduce the potential to overlook adjoining properties at 49 and 53 Northwood Road, to reduce visual impact and acoustic impact on the adjoining neighbours, and to ensure compliance with various numerical controls in the DCP. Those aims inform the qualitative comparison required by Moto. I accept the agreed expert evidence that the development as proposed to be modified is consistent with the relationship between the subject development and the adjoining neighbours as sought to be achieved in the original development consent.
Having regard to those matters, I am 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.

Whether the modifications should be approved

As noted above, the plans for which approval is now sought are those in exhibit B. The changes for which approval is sought are listed in paragraph [12] above.
The Council's contentions, and the objector submissions both on site and in written submissions, raised a number of non-compliances with requirements of the LEP and the DCP, in relation to height, wall height, number of storeys, FSR, and additional excavation.
The building height exceeds the 9.5m maximum set in cl 4.3 of the LEP. The objectives of the height development standard are: (a) to minimise any overshadowing, loss of privacy and visual impacts of development on neighbouring properties, particularly where zones meet, and (b) to maximise sunlight for the public domain, and (c) to relate development to topography.
While a variation to the development standard would be required under cl 4.6 of the LEP were this a development application, the modification application can be approved notwithstanding the non-compliance: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65. The exceedance occurs at the slab and roof of the first floor level and the proposed pergola above the ground level rear terrace. I accept the agreed planning evidence, that the reduction of the depth of the pergola largely removes the visual impact of the pergola from 49 Northwood Road, and that notwithstanding the exceedance, the visual impact from Holden Street and 49 Northwood Road is in the circumstances reasonable. I accept the agreed expert evidence that the bulk and scale of the development was an issue in relation to the extended terrace and the associated pergola, and that the amendments to cut back the terrace area and the pergola (drawing 12-597/7E) address that issue. I accept the agreed evidence that the impact on overall bulk and scale by the non-compliance is minor, and does not result in unacceptable visual impacts, overshadowing or view loss.
The modification application proposes an increase in wall height above the 7m specified in cl 1.7.1(a) of the DCP, ranging from 38mm on the southern elevation above the kitchen to 518mm on the northern elevation at the first floor terrace. The objectives of section 1.7 Building Design include to "ensure new dwellings and alterations and additions to existing dwellings reinforce the typical bulk and scale of existing dwellings within the street and the area", and to "minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity". The planners agree that the bulk and scale of the development is acceptable; and that given the constraints of the topography of the site, and the increase in building height as a consequence of the imposition of condition 2 in the original consent, exceedance of the wall height control at cl 1.7 of Part C.1 of the DCP is consistent with the objectives of those provisions which include ensuring appropriate bulk and scale, and minimising impacts in terms of overshadowing, loss of privacy and loss of views. I accept that evidence.
Based on the amended modification plans the building now complies with the FSR development standard in cl 4.4 of the LEP.
In relation to the balcony depth, cl 1.8.2(c) of the DCP specifies that elevated decks or terraces greater than 1m above ground level (existing) are not to exceed a maximum depth of 3m; and deeper decks may be considered if privacy to adjoining properties is addressed. The objectives of section 1.8 Amenity are: 1 To provide reasonable solar access to habitable rooms and recreational areas of new and existing developments. 2 To provide reasonable acoustic and visual privacy for neighbouring properties. 3 Minimise overlooking between adjoining dwellings and their private open spaces.
The experts agreed that the ground floor terrace would not result in privacy impacts on the adjoining rear neighbour at 2A Holden Street, or the adjoining side neighbours at 49 and 53 Northwood Road, due to the distances and the use of privacy screens (ex 2, 3.5.1.4-3.5.1.6). The experts agreed (ex 3, 3.4.1 and Attachment C) that the amendments to the ground floor terrace by cutting back the projecting slab and rationalising internal dimensions address any privacy and amenity impacts. I accept that evidence, and on that basis agree that while the deck is 3.9m deep on the northern side of the site, it is consistent with cl 1.8.2(c) of the DCP.
In relation to cut and fill, while the proposed modification involves additional excavation to accommodate a larger plant room. The objectives of section 1.6 Cut and Fill include "to ensure that excavation and filling of a site does not result in unreasonable amenity impacts to adjoining dwellings". I accept the agreed planning evidence that there are no resulting amenity impacts on neighbouring properties in regard to bulk and scale arising from that additional excavation (ex 2, 3.6.1.4); and on that basis the extent of cut and fill is not inconsistent with cl 1.6(d) of the DCP.
The objectors maintained objections to the proposed modification on the basis of an increase in overshadowing. Based on the revised shadow plans and elevations and 3D modelling (ex 2, Attachment 6), that is, before the reduction in bulk from the cutting back of the rear ground floor slab, the expert planners concluded that the proposed modifications do not have any additional shadow impact on the eastern elevation of 2A Holden Street and the windows in that elevation generally receive solar access between 10am and 12 noon. They agreed that while there is some additional overshadowing of the rear of 53 Northwood Road between 11am (being within the concrete parking space accessed off Holden Street and part of the steeply terraced garden west of the swimming pool), to 1.00pm, including some 6sqm of overshadowing of the garden, paved pool surrounds and western edge of the swimming pool at 53 Northwood Road and part of the carport of 55 Northwood Road, the principal private open space of 53 Northwood Road, being the elevated ground floor balcony, retains three hours of solar access between 12 noon and 8pm in accordance with the requirements of cl 1.8.1 of the DCP, and the key paved area by the swimming pool enjoys three hours of solar access between 12 noon and 3pm (ex 2, 3.9.1). The planners also agreed that the overshadowing of the northern side windows of 53 Northwood Road are a result of changes permitted by the CC, and are not part of this modification application. I accept that evidence.
I accept the agreed expert evidence, which is consistent with the site view, that the significant majority of the views from 49 Northwood Road across Woodford Bay to the south-east towards Longueville and south across the Lane Cove River are retained, and the proposed modifications do not materially impact on the totality of the views from 49 Northwood Road; and that with the privacy screen along the northern edge of the ground floor terrace, 49 Northwood Road would still maintain the majority and the most significant views from the dining room at the rear of the house (ex 2, 3.8.1). That is consistent with the objective (4) of cl 1.7 of the DCP.
The planning experts agreed that the proposed modification of the privacy screen on the southern edge of the lower ground floor deck, from a 1.7m high x 3m long screen to a full ceiling height x 1.6m long screen, improves the privacy outcome for 53 Northwood Road (ex 2, 3.6.1); the deletion of the proposed first floor level extension of the terrace removes the potential for overlooking of 49 and 53 Northwood Road, and removes the privacy concerns from the first level (ex 2, 3.6.2); and that the re-orientation of the privacy screen adjacent to the ground floor study will remove potential for direct overlooking between 49 Northwood Road (ex 2, 3.6.3). The further amended plans provided on 5 April 2016 (drawing 12-597/7E) incorporate the change for the ground floor kitchen window on the southern façade from the installed privacy screen to obscure glazing which Mr Nash agreed would address potential overlooking to 53 Northwood Road (ex 3, 3.6.4). I accept that evidence.
The agreed expert evidence is that with the amendments to the ground floor rear terrace to cut back the extended terrace area and modify the design of the pergola, bulk and scale of the proposed development when viewed from Holden Street and 53 Northwood Road are no longer an issue (ex 3, 3.5.1); and that with those changes and the deletion of the upper level extended terraces, character of the proposed development when viewed from Holden Street is no longer an issue (ex 3, 3.7.1). The planners agreed that the reduction in FSR and the reduction of the length of the ground floor rear terrace have reduced that bulk, perceived height and building depth, such the that building could not be considered to be an overdevelopment of the site (ex 3, 3.8.1). I accept that evidence.

Conclusion

Based on the agreed expert planning evidence, I am satisfied that while there are non-compliances with the building height, wall height, and balcony depth requirements of the LEP and DCP, the impacts of those non-compliances on bulk and scale, overshadowing, overlooking, character, and views are not such as to warrant refusal of the modification application as amended. Approval of this application would not override the requirement that any future applications be assessed on their merits.
Having regard to the detailed submissions made on site and in writing, both to the Council and following the amendments to the plans, I am satisfied that the substantive matters raised by the objectors have been considered in the expert evidence, and addressed in the amended plans. The objectors maintained their previously expressed concern as to process, that the applicant is seeking retrospective approval for works already undertaken, and their objections reflected a desire that the conditions of the original consent be maintained. As noted above, the development consent includes the changes incorporated in the CC. The assessment required under s 96(3) of the Act for further changes permissible in an application pursuant to s 96(2) of the Act is an assessment of the changes proposed on their merits; it is not a relevant part of that assessment that work may have been carried out contrary to the approved development consent.
In undertaking that assessment, the expert evidence before the Court supports the conclusion that it is appropriate to approve the modification application, in the form as now amended (ex B). The amended architectural plans filed on 5 April 2016 incorporate all the changes agreed between the expert planners so as to clarify matters identified in the plans and to remove any potential ambiguity or uncertainty as to the extent of authorised works, and to obviate the need to provide detail of design changes in the conditions.
The orders of the Court are: 1. The appeal is upheld; 2. Modification Application No 72/2013B to modify Development Consent No 72/2013 for construction of a dwelling house at 51 Northwood Road Northwood is determined by approving the modifications as set out in Annexure A; 3. As a consequence of order (2), Development Consent No 72/2013 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and 4. The exhibits, other than A, B, C, and 7, are returned. Linda Pearson Commissioner of the Court 10847 of 2015 Pearson_Annexure A (159 KB, pdf) 10847 of 2015 Pearson_Annexure B (264 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: 29 April 2016

(1999) 106 LGERA 298

(2008) 166 LGERA 342

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