Cahill & Anor v Lane Cove Council

1. The appeal commenced by way of a s34 conciliation conference and a number of options considered. However there was no agreement and the s34 conference was terminated and the matter moved to determination under the s34AA provisions. The main contentions initially identified are summarised as follows: 1. Whether the modified development is substantially the same as that originally approved. 2. Whether the proposed additional trafficable area off the main bedroom 1 would cause unreasonable privacy impacts on 3 Birriwa Place. 3. Whether the deletion of the conditional 1 m setback adjacent to the main bedroom 1 and the stairwell would cause adverse impacts to 3 Birriwa Place.
2. However, during the course of the s34 conference a number of design options were discussed with the Applicant proposing further amendments to maintain the original setback of the western wall and to recess the main bedroom window and provide a hob along this wall to prevent overlooking.

The site:

1. The site is bound by Birriwa Place to the east and Woodford Bay to the west. It is irregular in shape with an area of 1,282.9 sq m and a frontage of 3. 835 m to Birriwa Place and a 22. 765 m frontage to Woodford Bay.
2. The site falls from the Birriwa Place frontage to the Woodford bay frontage by approximately 14 m. It contains several trees and vehicular access to the site is available via Birriwa Place. Surrounding residential developments comprise two storey dwelling houses with significant water and river views.
3. The site is within the R2 - Low Density Residential Zone under the provisions of the Lane Cove Local Environmental Plan 2010. Surrounding the site are two storey dwelling houses zoned R2 - Low Density Residential comprising a two storey dwelling house at 1 Birriwa Place immediately to the north of the site and to the to the north east of the site is 5 Birriwa Place and 1A Birriwa Place which contain two storey dwelling houses. These properties are at a lower level than the subject site.

Planning controls

1. The following controls apply:

• Lane Cove Local Environmental Plan 2009; under which the subject site is zoned R2 Low Density Residential. The proposed development is permissible with consent.
• Lane Cove Development Control Plan 2010
• State Environmental Planning Policy (Building Sustainability Index) 2004.

The evidence

1. Detailed evidence was presented by: 1. Mr K Nash; Council's consultant planner, 2. Mr R Chambers; Applicants consultant planner.
2. The original proposal included a relatively large section of non - trafficable terrace off the irregular shaped main bedroom together with a smaller trafficable area. The modification sought to have the trafficable area extended by about 8 sq m in order to improve the outlook from this bedroom area, which would be partially obstructed by the dividing structure between the two sections of the terrace.
3. However, the effect of this extension would be to potentially allow more overlooking of the neighbouring property (3 Birriwa Place) kitchen windows and outdoor terrace. Mr Nash prepared sight line diagrams (Ex 5) indicating that some overlooking could occur.
4. As a result of this concern, the applicant provided further amendments as detailed in Ex C and including:

• Recessing the main bedroom window 300mm behind the southern wall
• Reducing extent of the additional trafficable terrace area which is enclosed by a 1200mm frameless glass balustrade
• Providing a 2000mm long obscure glass screen of 400mm height along the southern wall.

1. Consequently, the sight line diagrams were revised as shown in Ex E. This shows the sight lines for a 1.5m eye height from the most critical positions A (inside bedroom), B and C (13m - 14m separation) to No 3 on the terrace and the bedroom. In all cases the there are no significant overlooking opportunities onto 3 Birriwa Place due to the blocking effect of the recessed main window, the 400mm obscure screen and the position of the eave line on 3 Birriwa Place. Any viewing in this direction would most likely be onto the roof area of this house and in a secondary view direction considering the more attractive primary view corridor towards the water.
2. Mr Chambers is now satisfied that the overlooking and loss of privacy issue from the front terrace is satisfactorily resolved without the need for the 1m setback. However, Mr Nash preferred the obscure screen to be located at a greater setback within the terrace behind the nib wall. Whilst this was shown not to have any material effect on overlooking, he considers this would reduce to apparent bulk and scale of the side boundary wall, which is being retained on the original 1.5m setback and also improve solar access.
3. On examination of these concerns, it was demonstrated that the extent of the screen seen from the neighbouring property would be in the order of 200 - 250mm high over its 2m length. In this regard, Mr Chambers says the screen takes up about 3.6% of the side elevation and does not present any unreasonable bulk and scale issues considering the southern wall elevations complying setback.
4. The consideration of this issue involved reference to the following relevant Building Design and Amenity objectives of the DCP: 1.7 Building Design 4. Minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity. 1.8 Amenity Objectives 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
5. Notwithstanding Mr Nash's aforementioned preferences, he agreed that the amended proposal in respect of the upper level terrace represented a reasonable balance in the competing neighbour's interests and that the DCP objectives were satisfied as reasonable solar access and visual privacy was provided and the amendments effectively minimize overlooking.
6. The other aspect of the amenity impacts on 3 Birriwa Place concerns privacy impacts into its kitchen/dining area and overlooking from the proposed stairwell (2m x 2.6m) and the main bedroom window (0.6m x2.6m) on the southern wall, which the additional 1m wide setback condition also sought to address.
7. According to Mr Chambers, the bedroom window is relatively narrow and it will have vertical timber battens in front of it to focus views southward and not laterally to No 3. Taking into account the higher level of the window relative to No 3, he says that any possible overlooking is acceptable considering it is from a narrow bedroom window that is located on a complying side setback wall of 1.5m. Nevertheless he agreed that the window could comprise obscure glazing. Then in response to concerns that the window could nevertheless be opened and allow overlooking, the applicant agreed to provide a sashless window form with a top opening section of 900mm and a bottom opening of 100mm similar to that shown in Ex E.
8. A further privacy aspect concerns potential overlooking from the upper level window of the stairwell. But this window is well elevated and displaced from direct viewing into No 3 and is covered by a timber batten screen to allow natural light whilst minimizing privacy intrusion for No 3. Mr Chambers says that this results in an acceptable level of amenity and no significant objection was raised by Mr Nash.
9. Condition 4 of the consent required landscape screening to be provided along this southern boundary adjacent to the dwelling presumably within the 1m wide setback. This would be similar to that proposed adjacent to the garage. Insofar as there was some confusion about the extent of any such landscaping, there was no compelling evidence presented to support the necessity of such 1m setback and associated landscaping along a side boundary when the designated setback of 1.5m is provided and the privacy, visual bulk and amenity issues have been satisfactorily addressed.
10. Apart from these design issues, the threshold contention in the s96 modification application is whether the development relates to substantially the same development as approved.
11. The Council contention is that the application does not satisfy this test because : 1. The proposed modified development is both physically and functionally different in material aspects from that which was approved, and 2. In terms of the circumstances in which the consent was granted, the consent would not have been granted without imposition of conditions 1 - 5 (which required certain design changes to be made), conditions which are material and essential features of the approved development.
12. Mr Seton firstly submits that consideration should be given to whether the following aspects are essential feature elements of the development. i.e. the size of the trafficable area and its setback from the neighbouring property and the provision of landscaping adjacent to the building. His submission is that in a physical sense the changes involving the reduction in setback, increased trafficable area of approximately 8 sq m to the approved 43 sq m deck and non - provision of side landscaping are essential features that required compliance with the conditions otherwise consent would not have been granted. Accordingly, the Court should find the application is not substantially the same or achieves the same outcomes as the original consent.
13. Both Mr Seton and Mr Pickles made reference to a number of authorities on "substantially the same development" issues, including Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280, wherein Bignold J said at: 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. 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).
14. Accordingly, Mr Pickles submission is that there must be a qualitative and quantitative assessment of whether the development is substantially the same as approved in terms of the relevant facts and degree of the subject circumstances. He says that: 1. It is axiomatic that a modification of a development under s 96 may have the effect of rendering the development "physically or functionally different" in some respect: Michael Standley & Associates Pty Limited (supra) at 439. The real question is whether that difference makes the overall development anything other than substantially the same as that approved. This involves a comparison of the development as approved with the development as proposed to be modified. This must not involve undue focus upon elements of the development that are different, but a comparison of the whole. 2. The fact that that comparison may yield functional and physical differences that are "material" is also not to the point, unless those differences result in the whole modified development being not substantially the same as the whole of the approved development. The materiality of the differences will be assessed under s 79C. It is the substantiality of the differences in total which are relevant to the enquiry under s 96. 3. Neither is it relevant to enquire as the Council poses in particular (b); whether the Council would have approved the development without the relevant conditions which are sought to be modified. This is to ask the wrong statutory question. If this was the question, a consent could never be modified because it may ordinarily be assumed that all conditions were imposed for a sound planning reason and that the consent would not have been granted without the conditions. Every condition may be said to be "material and essential" because presumably that is why the condition was imposed. 4. The fact that the Council imposed certain conditions requiring design changes which are said to be material does not preclude their modification and the imposition of different conditions which achieve the same objective but by different means.
15. I understand from the evidence that the purpose of condition 1 and 2 was to reduce part of the south - western section of the upper deck and require a 1m setback to reduce overlooking and adverse privacy impacts on the adjoining No 3 property. But the amended plans derived during the conciliation conference contain relatively minor amendments that satisfactorily achieve the privacy and amenity impacts sought by the original consent.
16. Accordingly, I accept Mr Pickles submission that as the slight reduction and reconfiguration of the upper deck achieves the privacy and amenity outcomes, then: ". . . it could hardly be said that the condition is incapable of modification through a different design because the condition is said to be "material and essential". It may be true to say that the object of achieving privacy between the top floor deck and the adjoining property was material and essential, but it could never be asserted that the particular means of achieving that outcome determined by the Council in accordance with condition 1 was the only means and that the condition is incapable of modification by a different means."
17. I also note Mr Pickles reference to the matter of Vacik Pty Limited v Penrith City Council [1992] NSWLEC 8, wherein Stein J held that "substantially" meant "essentially or materially or having the same essence".
18. Having considered these submissions and the subject circumstances, in the first instance the development consent was essentially for a large 3- level dwelling with outdoor terraces on each level and included a swimming pool. Insofar as the conditions 1 -5 sought some amendments, including a prescribed increased side setback of 1m to achieve better amenity outcomes, I consider Mr Pickles submissions reasonable that consideration can be given to the modification of these conditions to assess whether the desired amenity outcomes can be achieved by an alternative means.

Conclusion

1. Having considered the evidence and in particular the amended modifications presented to the Court, together with the submissions and undertaken a view, I consider this application merits conditional approval for the following reasons.
2. This application was made on the basis of a s96 modification to the aforementioned conditions 1-5 of the development consent. It is therefore firstly necessary to consider whether the modified development is substantially the same as the development for which consent was originally granted.
3. As mentioned, Mr Seton submits, for Council that the modified development is not physically or functionally the same. Based on the aforementioned evidence and submissions, my assessment is that the amendments are of a relatively minor nature resulting in the modified development remaining a large 3 - level dwelling with fundamentally the same but reduced terraces and a swimming pool. I do not consider the 1m setback and associated conditions to be an essential part of the consent to achieve the desired amenity outcomes. It has been satisfactorily demonstrated that the quantitative and qualitative aspects of the proposal to achieve the desired amenity outcome can be achieved with the further modifications on the basis that the whole development remains substantially the same as originally approved, in my assessment.
4. This then allows the relative merits to be assessed. Clause 2.3(2) of the LEP requires the consent authority to have regard to the zone objectives when considering a development application. Of particular relevance in this matter is the objective to retain and where appropriate improve the existing residential amenity of the single family dwelling area.
5. In this regard, I am satisfied that this proposed new dwelling, as modified in the appeal and which reasonably complies with DCP building and solar access controls will retain the existing level of residential amenity in the neighbourhood that would arise from a complying development, particularly considering that the southern wall of the proposal complies with the prescribed setbacks.
6. The more specific controls in the DCP require the building design to "minimise" amenity impacts and to provide "reasonable" visual privacy for neighbouring properties. As both planners agreed that these objectives are achieved in the amended plans, I am satisfied to rely on these opinions in approving this modification application.

Court orders

1. The Court orders that: 1. The appeal be allowed. 2. The Section 96 modification to the development consent granted for DA 153/14 for the construction of a 2 - storey dwelling house, a swimming pool and landscaping works at No 2 Birriwa Place, Northwood is allowed in accordance with the conditions in Annexure A and B. 3. The exhibits may be returned except 1, 5, 6, A, C, D, E and F. R Hussey Acting Commissioner 11170 of 2015 Hussey (C) - Annexure A - Amended 24.6.2016 (119 KB, pdf) 11170 of 2015 Hussey (C) - Annexure B - Amended 24.6.2016 (244 KB, pdf)

Amendments 06 July 2016 - Order Slip rule amendment made: Pursuant to UCPR 36.17 to Annexure A & B 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: 06 July 2016