Chang v Mosman Municipal Council

Modification Application Appeal - consideration of the reasons for the original consent (s 4.55(3) EPA Act) - Contention 2

1. The Modification Application is made pursuant to s 4.55(2) of the EPA Act. The Court, as consent authority, may modify a consent if it is satisfied that the development to which the consent as modified is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified if at all (s 4.55(2)(a)). The Court is also required to consider any submissions made concerning the proposed modification (s 4.55(2)(d)).
2. Once the terms of s 4.55(2) are met, s 4.55(3) requires that the Court in determining such an application take into consideration certain things. The first consideration is "such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application." The EPA Act was modified on 1 March 2018 to include the second requirement in s 4.55(3) to "also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified".
3. The parties agree, and I am also satisfied that the Proposed Modification satisfies the precondition under s. 4.55(2)(a) of the EPA Act, namely that the development as modified will be substantially the same development as the development for which consent was originally granted. Similarly, the preconditions under s 4.55(2)(d) of the EPA Act have been satisfied because I have considered submissions made concerning the proposed modification, where objector's written submissions are in evidence, and the Court has heard from two resident objectors at the commencement of the s34AA conference/hearing in these proceedings.
4. The Respondent and Applicant argue in written submissions as to whether consideration of the reasons for the consent is determinative and argue as to what role s 4.55(3) plays in the determination of the Modification Application Appeal. There seems to be some confusion between the parties as to their respective submissions, and I confirm and accept as held by Pain J in Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2020] NSWLEC 59 at [50] that: "The important finding in Arrage for the purposes of this appeal is that matters in s 4.55(3) are not mandatory in the determination of s 4.55(2)(a)."
5. The Applicant submits (at par 4 of written subs) that the Applicant's position is that the law is clear that consideration of the reasons required by s. 4.55(3) is simply one of a number of merit considerations. It is not in and of itself determinative. No such language is used in s. 4.55(3) to suggest that a modification application cannot be granted if it is contrary to the reasons given by the consent authority in the grant of the original consent.
6. The Applicant relies on the decision of TL & TL Tradings Pty Ltd v City of Parramatta Council [2019] NSWLEC 160, ('TL & TL Tradings'), where Justice Robson confirmed that whilst the reasons must be considered, they are not determinative at [35] and [39] as follows: "[35] Again, while not determinative, at the hearing of the substantive appeal, the Court will be entitled, if not required, to consider the reasons of Brown C and Moore J insofar as they may be relevant. [39] Second, I accept Council's submission that the final sentence of s 4.56(1A) of the EPA Act requires the Court (at hearing) to take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. At the substantive hearing, the Court would be entitled (although it is a matter for the Court) to take into account the reasons of Brown C in I V Trading and Moore J in TL & TL Tradings Pty Ltd."
7. I note that TL & TL Tradings dealt with s. 4.56(1A) of the EPA Act, as the original consent was granted by the Court rather than the Council, and I accept the Applicant's submission that s 4.56(1A) is on identical terms to s 4.55(3), and hence, the findings of Robson J are equally applicable to s. 4.55(3) of the EPA Act and that TL & TL Tradings is directly relevant to these proceedings.
8. At par 9 of written submissions, the Applicant submits that "Having considered the original reasons, the Court is free to form its own views. If the Court concludes contrary to the original reasons that the Terrace Roof Structure does not result in unacceptable bulk, then s.4.55(3) would not operate to constrain the Court from approving the application."
9. The Respondent submits that the Proposed Modification fails to satisfy s 4.55(3) of the EPA Act in Contention 2 of the Modification Appeal SOFAC and contends that: 1. the modification is not consistent with the reasons for the grant of consent and Condition 2; and 2. the reasons for the grant of consent and the imposition of condition 2 were specific and can be found in the assessment report.
10. The Respondent refers the court to three documents which are in evidence: 1. DA Assessment Report folio 359 (Respondent's bundle of documents Tab 13, Ex 5); 2. Council Resolution and panel reasons (Respondent's bundle of documents Tab 14, Ex 5); 3. Modification assessment report (Respondent's bundle of documents Tab 9, Ex 5)
11. The Applicant submits that the Court should approach the planning officer's report with caution because the consent authority did not agree with the analysis of the planning officer and determined that the terrace was acceptable provided that the roof and columns were deleted (Applicant submissions at par 10): "Therefore, whilst the reasons given by the consent authority "generally concur" with the planning officer's report, the report must be read in light of the consent authority taking a different view on the terrace itself." (App Subs at par 11)
12. The requirement of s 4.55(3) is to consider the reasons given by the consent authority for the grant of the consent, and I have given close consideration of the Council Resolution and panel reasons at Tab 14 of Ex 5, being the Agenda Report Council Resolution Item for MLPP/39 (Panel Reasons) and deals with the DA 8.2018.6.1 being the proposal for alterations and additions to a dwelling house comprising three storey addition to the rear, alterations to the swimming pool, removal of trees and landscaping works. The motion, carried unanimously, reads as follows: "We find the Clause 4.6 variations to be well grounded and we approve the application subject to the recommended conditions of consent in the report amended as follows: Amended Plans - Rear Terrace Roof Deletion The Construction Certificate plans shall delete the roof and all supporting structure above the elevated terrace accessible from the proposed dining room of the ground floor plan in the north-eastern corner of the dwelling. The terrace shall maintain the privacy screen shown on the east elevation on Drawing 3001, Issue A. […] CARRIED UNANIMOUSLY Reason: The Panel generally concurs with the planning officer's report but has recast Conditions 2 to allow access from the dining room to an outdoor terrace without the bulk associated with the roof above."
13. I reproduce an extract from the approved plans below: Figure 4 - Image from drawing 3001 Issue A (Folio 415 Ex 5 Vol 2, Tab 15)
14. I have also considered the planning officer's assessment report at Tab 13, Ex 5 because it is referenced in the Panel Reasons. The description of the proposal relating to the Terrace Roof Structure is at folio 360 of Ex 5: "Ground floor: Rear addition, […] Covered rear terrace with screening"
15. Under the heading of 'bulk and scale' there is no mention in the assessment report of the rear terrace and the assessment officer concludes that "the proposal minimises the adverse impacts of bulk and scale by incorporating wide setbacks to increase spatial separation to neighbouring buildings. The use of larger setbacks enables the amenity of adjoining properties to be maintained." (folio 361 Ex 5)
16. In response to solar access/overshadowing, the assessment officer concludes that "the proposal satisfies the planning criteria outlined in S 5.8 Solar Access of the Mosman Residential Development Control Plan 2012 (MRDCP). Notwithstanding, the recommendation includes a condition to delete an elevated rear terrace with screening and roof cover from the ground floor plan (mid-level); which should see a reduction of afternoon overshadowing towards the eastern adjoining neighbour."
17. At folio 362 of Ex 5, the assessment officer refers to the rear building alignment in response to a submission and after agreeing that the elevated rear terrace accessed from the mid-level dining room (north-eastern corner of dwelling) is considered to extend beyond the predominant rear building line, concludes that "the recommendation includes a condition to delete the elevated terrace to ensure that the established rear building line is preserved." [emphasis added]
18. Rear setback is revisited in the assessment report again at folio 368 in relation to Objective O8 and Planning Control P19, and the assessment officer concludes that "this two storey structure is considered to protrude beyond the established pattern of rear building lines and is not supported. Consequently, the recommendation includes a condition to delete the elevated terrace accessible from the dining room and a recommendation that: "It is to be replaced with roofing for the sheltered outdoor room immediately below (lower ground level)."
19. At folio 374 of Ex 5, the assessment officer includes recommended development consent condition 2 which reads as follows: "To preserve the established rear building alignment, the Construction Certificate plans shall delete the elevated terrace accessible from the proposed dining room of the ground floor plan in the north-eastern corner of the dwelling. The terrace is to be replaced by roofing for the covered outdoor room immediately below. The top roof for the covered outdoor room is not to exceed RL20.00."
20. I accept the Applicant's submission (at par 10 written submissions) that the Court should approach the DA Assessment Report with caution as it can readily be gleaned from the above that the recommendations of the assessment officer were not universally adopted by the Consent Authority.
21. The Applicant refers to the sections of the planning officer's report quoted in the Respondent's Submissions being of limited or no utility for the following reasons (par 12 written submissions): 1. they largely concern the entire terrace structure (including privacy screen which the Applicant submits lends far more bulk than the Terrace Roof Structure); 2. they deal with other issues aside from bulk, such as overshadowing, rear setbacks and view loss - and in fact, do not mention bulk at all; and 3. those sections in fact support the proposition that the Terrace Roof Structure is compliant with relevant controls (save for rear setback, discussed below), concluding that "The assessment finds that the proposal satisfies the planning criteria outlined in s 5.8 solar access of RDCP 2021," and "A site inspection of 2 Bay Street dated 13 April 2018 determined the extent of views loss from the proposal to be negligible."
22. The Respondent submits that the intention of inserting the second sentence in s 4.55(3) of the EPA Act as per the second reading speech, was to "stop development creep whereby through one or more modification applications an application seeks to gain consent for a development that would not have been originally approved" (Respondent written submissions at par 25).
23. Having undertaken a detailed consideration of the reasons, I do not reach the conclusion that the reasons establish that the proposed modification will result in development creep in these proceedings because the consent authority saw fit to allow access from the dining room to the outdoor terrace but without the bulk associated with the roof above. The assessment officer's report considered bulk and relied on the setbacks to enable the amenity of adjoining properties to be maintained. My observation and conclusion is that the consent authority deleted the roof of the terrace to reduce bulk, whereas the assessment officer considered bulk to be ameliorated by the setbacks and building separation. On the other hand, the assessment officer's reason for deleting the whole of the roof and terrace was to preserve the established rear building alignment while at the same time recommending, perhaps inconsistently with this reasoning, that the terrace is to be replaced by roofing for the covered outdoor room immediately below.
24. As I have concluded earlier, the Court is required to consider the reasons for the original consent pursuant to s 4.55(3) of the EPA Act and the Court not bound by these reasons. The requirement is to consider them which I have done. Whether the Proposed Modification is inconsistent with those reasons is a consideration in effect to assist and guide in the merit assessment of the modification sought.
25. Having considered the reasons, the Court's task is to undertake the exercise set out in s 4.55(2) and s 4.55(3) including consideration of those matters of relevance in s 4.15(1) of the EPA Act. Accordingly, I will now move on to the contentions raised by the Respondent.

Does the Proposed Development Fail to meet the Aims of the MLEP and Fail to satisfy the objectives of the R2 Low Density Residential Zone? (Contentions 3 and 4)

1. The Respondent contends that the appeals should be dismissed because the Proposed Modification (the Terrace Roof Structure) fails to satisfy the objectives of the R2 Low Density Residential zone of the MLEP particularised as follows: 1. The Terrace is not of a height and scale that seeks to achieve the desired future character, does not maintain or enhance local amenity, and does not satisfactorily minimise the adverse effects of bulk and scale of buildings; 2. The Terrace does not have adequate regard to local amenity and will result in the loss of views from a neighbouring property.
2. The SOFAC refers to the objectives on the MLEP provided in cl 1.2 (2)(a), (e) and (f) to support this contention and at particular a) states as follows: 1. Proposed Modification would not maintain existing residential amenity Cl 1.2(a) to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity,
3. At particular b) the SOFAC states as follows: 1. Proposed Modification would not retain views from adjoining residential lots to water and foreshore reserves. Cl 1.2(e) to recognise, protect and enhance the natural, visual, environmental and heritage qualities of the scenic areas of Mosman and Sydney Harbour and to protect significant views to and from the Harbour, Cl 1.2 (f) to retain views to and from water and foreshore reserves and public areas from streets and residential lots,
4. As contention 7 deals exclusively with view loss, I consider the MLEP aims in cl 1.2(e) and (f) later in this judgment in my consideration of the evidence regarding view loss.
5. The objectives of the R2 Low Density Residential zone in the MLEP are as follows: Zone R2 Low Density Residential 1 Objectives of zone • 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 the single dwelling character of the environmentally sensitive residential areas of Mosman. • To maintain the general dominance of landscape over built form, particularly on harbour foreshores. • To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. • To ensure that development is of a height and scale that seeks to achieve the desired future character. • To encourage residential development that maintains or enhances local amenity and, in particular, public and private views. • To minimise the adverse effects of bulk and scale of buildings.
6. The Respondent submits that the aims and objectives of the MLEP and the Objectives of the R2 zone provide that there should be a dominance of landscape over built form. The MRDCP describes the area in Part 7 Townscapes (see Part 7,1, and 7.2 and part 12 Middle Harbour/Pearl Bay townscape). It is within this context that the Respondent submits that the Court must consider the structure for which approval is sought.
7. In the Joint Expert Report of the town planners, Ex 3 at page 11, Mr Layman's evidence in relation to contention 4, failure to satisfy the objectives of the R2 residential zone relates to the rear setback and the desire to maintain general dominance of landscape over built form as a key part of the desired future character and a control of the adverse effects of building bulk and scale. His evidence is as follows: "The single dwelling character of the residential area surrounding the site is such that the rear setbacks of dwellings are arranged in a way that facilitates the mutual enjoyment of view and outlook from the rear of properties the retention of the roof and supporting structure of elevated terrace is inconsistent with this. The site is within an environmentally sensitive residential area in my opinion, by reason of its harbour foreshore location. The desire for dominance of landscape and retention of natural features is a key part of the desired future character and the control of adverse effects of building bulk and scale together form a key part of local amenity of which the ability to appreciate that local amenity through views is essential to the zone objectives. The retention of the roof and supporting structure of the terrace to the elevated ground floor dining room is inconsistent with the desired future character embodied in the zone objectives. Removal of the roof and supporting structure of the terrace would go to the minimising the bulk and scale of the proposal is perceived from the adjoining land. The retention of the roof and supporting structure of the terrace adversely affect the amenity and outlook of the neighbours particularly at no. 2 Bay Street."
8. The Respondent relies on the photographs in Ex 6 taken by Mr Layman from 2 Bay Street to demonstrate this evidence of Mr Layman. The Respondent submits as follows in relation to the expression "environmental sensitive residential area" adopted by Mr Layman: "43. Mr Layman was asked a question by the applicant's solicitor in relation to what he meant by "environmentally sensitive residential area" and he was also taken to a clause of the LEP relating to exempt and complying development. This is in part 3 of the LEP. With respect to the applicant's submission and questions in this regard it is of no assistance to the Court whatsoever and should be disregarded. 44. Mr Layman while answering the questions truthfully that the property was not within an environmental sensitive area for the purpose of exempt and complying development did not resile from his opinion as stated in the joint report."
9. In response, the Applicant submits that the Court would accept that the Site is not an environmentally sensitive residential area for the following reasons, which I accept: "37. The Council, and particularly Mr Layman, have presented no evidence that the property is situated on environmentally sensitive land (or an environmentally sensitive residential area as referred to in the objectives of the R2 residential zone). As acknowledged in cross-examination, this is simply Mr Layman's personal opinion. It is not based on a definition in the LEP, or any other instrument. 38. Mr Layman further acknowledged in cross-examination that the land did not meet any of the characteristics in cl. 3.3 of the LEP (albeit that clause is specific to exempt or complying development). 39. Council's approach should be rejected. Subjective personal views are an unsound basis to conclude land falls within the definition of environmentally sensitive residential area. 40. Environmentally sensitive residential area is not defined in the LEP. However, the term "environmentally sensitive area" is defined in clause 38 of the Environmental Planning and Assessment Regulation 2000 to mean: environmentally sensitive area means - (a) land identified in an environmental planning instrument as an environment protection zone such as for the protection or preservation of habitat, plant communities, escarpments, wetland or foreshore or land protected or preserved under State Environmental Planning Policy No 14 - Coastal Wetlands or State Environmental Planning Policy No 26 - Littoral Rainforests, or (b) land reserved as national parks or historic sites or dedicated as nature reserves or declared as wilderness under the National Parks and Wildlife Act 1974, or (c) an area declared to be an aquatic reserve under Division 2 of Part 5 of the Marine Estate Management Act 2014, or (d) land reserved or dedicated within the meaning of the Crown Land Management Act 2016 for the preservation of flora, fauna, geological formations or for other environmental protection purposes, or (e) land declared as wilderness under the Wilderness Act 1987. 41. In the absence of a defined term in the LEP, the term "environmentally sensitive area" from the Regulation should be adopted, and the term "environmentally sensitive residential area" understood to be an "environmentally sensitive area" which is zoned predominantly for residential use. 42. See also similar terms in the LEP and other instruments, including: a. clause 3.3 of the LEP which defines "environmentally sensitive area for exempt or complying development"; b. clause 3.3 in other LEP's (see for example the Randwick Local Environmental Plan 2012 or Penrith Local Environmental Plan 2010) which actually include slightly different definitions of "environmentally sensitive area for exempt or complying development," meaning that in drafting each LEP, the specific characteristics of environmentally sensitive residential areas have been considered; c. Schedule 1 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 which defines "environmentally sensitive land"8. 43. The defined term in the Regulation, cl. 3.3 of the LEP, and other environmental planning instruments are to be preferred over Mr Layman, and the Council's, personal view of what constitutes an environmentally sensitive residential area. 44. It is also apparent that each of the above defined terms relate to environmental factors, not aesthetic factors. That is - the receiving environment has special sensitivity, such as being an aquatic reserve, or land reserved for environmental protection purposes, or a wilderness area. 45. Mr Layman's reasons for characterising the site as an environmentally sensitive residential area relate to beauty/aesthetics. In light of the definition in the Regulation, cl. 3.3 of the of the LEP, and other environmental planning instruments, this cannot be correct. There are already aesthetic protections in the form of designation as a scenic protection area, and under SREP Sydney Harbour Catchment 2005 (which the Council conceded the proposal remains in compliance with/remains unchanged by this proposal)."
10. I accept that the Site is not an environmental sensitive area, however I note that Mr Layman's opinion remains as he expressed it in the joint report.
11. The Respondent submits that Mr Grossman, on page 11 of the Joint Expert Report, Ex 3, misconstrued the issue stating that the height and scale are acceptable based on prescriptive controls contained within the MRDCP. He talks of permissibility not acceptability. The Respondent relies on the evidence of Mr Layman at page 9 where he states as follows: "In my opinion the existing residential amenity is that which existed prior to the approval of the 8.2018.6.1 (the development consent). That residential amenity is characterised by a reasonable level of privacy, consistent with the desirability of maintaining an outlook from the rear of properties to the adjoining bushy foreshore lands to the north. The condition requiring removal of the roof and its supporting structure above the terrace to the ground floor dining room was in my opinion a reasonable balance between the residential amenity of 2 Bay Street, Mosman and the future residential amenity of 1 Carrington Avenue, Mosman. The existing pattern of rear setbacks in the part of Carrington Avenue containing the subject site is a stepped one which maintains reasonable sharing of use to foreshores and waterways. In the context, the proposal seeks to unreasonably increase the impact on neighbouring land at 2 Bay Street."
12. I accept that in relation to dominance of landscape over built form, Mr Layman conceded in cross examination that he did not hold concerns with regard to views from the Harbour (which is self-evident from the drone footage), and that if it can be viewed from the north, the built form of the dwelling would be visible behind the terrace if the Terrace Roof Structure is removed.
13. At par 47 of Applicant's written submissions, the Applicant states "47. […] Mr Layman conceded that his primary concern regarding dominance of landscape over built form was, in effect, the loss of outlook to a part of the tree canopy towards the harbour (or as Mr Layman characterised it, land and water interface) from 2 Bay Street. However, as noted under Contention 7, that view loss occurs primarily from a single bedroom (Bed 3) on the first floor, and a sitting room (Studio Apartment) on the ground floor. The loss of a small view of a small slice of distant tree canopy, from very specific vantage points only, does not materially change the dominance of built form over landscape, and does not form a sound basis to uphold Contention 3."
14. I accept the Applicant's submission (at par 48) that "the Council has failed to demonstrate unreasonable, or even material, impacts on 2 Bay Street. Impacts are not simply abstract concepts. They can be quantified in many respects - such as overshadowing, view loss, and the like. In each respect, the impacts are demonstrated to be minor or even de minimus, and numerically compliant."
15. Accordingly, I conclude that the impact on the amenity of the property at 2 Bay Street is not 'unreasonably increased' by the Terrace Roof Structure and that contention 4 is not supported by the evidence.

Inadequate Scenic protection - Contention 5

1. The Respondent contends that the Proposed Modification fails to satisfy the objective relating to scenic protection under cl 6.4 of the MLEP which reads as follows: 6.4 Scenic protection (1) The objectives of this clause are as follows - (a) to recognise and protect the natural and visual environment of Mosman and Sydney Harbour, (b) to reinforce the dominance of landscape over built form, (c) to ensure development on land to which this clause applies is located and designed to minimise its visual impact on those environments. (2) This clause applies to land identified as "Scenic Protection Area" on the Scenic Protection Map. (3) Development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that - (a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and (b) the development will maintain the existing natural landscape and landform.
2. The property is within the scenic protection area as shown in the maps at Tab 2B in Ex 5, and I am satisfied that the proposed modification will maintain the existing natural landscape and landform.
3. The Respondent submits that the roof form over the terrace structure including the thick concrete roof and columns fails to minimise the visual impact of the development to Sydney Harbour. The Respondent submits that Condition 2 of the consent, by requiring the deletion of a then proposed lightweight structure was aimed at reducing this impact on the development to and from Sydney Harbour. This submission is not supported by the evidence. The reasons of the consent authority are silent in this regard and the assessment officer's report does not articulate reasons in accordance with the Respondent's submission, and instead refers to the rear setback as the reason for deleting the roof and terrace while recommending replacing it with a roof structure over the outdoor dining area below.
4. Mr Layman says, at p 12 of Ex 3 that: "The deletion of the roof and supporting structure of the elevated terrace is in my opinion a suitable measure having regard to the design of the development to minimise the visual impact of it to and from Sydney Harbour."
5. The Respondent submits at par 50 of written submissions that "in cross examination Mr Layman stated that the structure had an impact on the visual impact of views of the harbour and foreshore from 2 Bay Street. He said, "We are not going to gain any additional landscape from removing the columns but you are gaining amenity from the view of the landscape and by reason of maintaining a dominance of the landscape over the built form if you increase the built form it dominates the landscape character from the outlook."
6. I have already accepted that in relation to dominance of landscape over built form, Mr Layman conceded in cross examination that he did not hold concerns with regard to views from the Harbour and I will address view loss in Contention 7 below.
7. I conclude that after considering the evidence before the court, contention 5 is not made out and I am satisfied that the location and design of the proposed development, minimises the visual impact of the development to and from Sydney Harbour.

Scale, setback, character, visual amenity - contention 6

1. The Respondent's case is that the applications should be refused as the Terrace Roof Structure fails to satisfy the objectives 02 and 06 at section 4.2 of the MRDCP because the Terrace Roof Structure is excessive in scale, does not satisfy side setback objectives, adversely impacts the visual amenity of the neighbour and is not in keeping with the desired future character. Further, the particulars in the SOFAC specify the particular controls including objective 08 and the relevant controls relating to rear setbacks.
2. Clause 4.2 of the MRDCP is titled Siting and Scale and provides as follows: "The siting and scale of the building - its height, floor space ratio, set back from site boundaries and relationship in size to adjoining buildings set the dominant character of any development."
3. The Original Consent approved a written request pursuant to cl 4.6 of the MLEP justifying the contravention of building height and wall height development standards. The minimum site setbacks required by the MRDCP are complied with, however the Council contends that the rear setback is not complied with which is the reason the Council Officer in the Development Assessment Report (at Tab 13 of Ex 5) originally recommended the deletion of the Level 2 balcony in its entirety. I note that the Consent Authority allowed the terrace and privacy screen, and recast Condition 2 to allow access from the dining room to an outdoor terrace without the bulk associated with the roof above. As I noted above, the rear setback or alignment was already potentially impacted by the assessment officer's original recommendation, which was not adopted, and the rear setback or alignment does not sufficiently change as a result of the Consent Authority allowing the terrace in order to warrant the appeal to be dismissed.
4. The Respondent submits at 58 of written submissions that the Panel's original position should be maintained as it is the roof and column structure specifically which gives the two story appearance to the terrace structure at the rear and submits that "It was clear that this two story roof structure was what was sought to be avoided in the decision of the Council in relation to the Original Consent."
5. In relation to the rear setback, the Council's evidence is that the rear set back is one that is consistent and stepped. At par 59 the Respondent submits that "This is because, as pointed out by Mr Layman, the street and foreshore are at an angle and not in a perpendicular line therefore the houses in the vicinity of the dwelling in question at their two-storey element are stepped back in a generally consistent line."
6. I have considered the photographic and drone evidence before the Court and accept the submission of the Applicant at par 54 of written submissions as follows: "Notwithstanding Mr Layman's evidence regarding rear setbacks, it is apparent from the drone footage, and the various photographs which the Court was taken to (in the Statement of Environmental Effects in Exhibit A) that there is no consistent rear setback line, whether at ground or first floor level. This is apparent which looking at the adjoining properties on 2 Bay Street and 3 Carrington Avenue, which both project further than the subject property at ground and first floor levels (both with first floor terraces extending further than the subject proposal.)."
7. Mr Layman was asked about the rear setback in cross examination by the applicant's solicitor and was asked whether he would agree that the rear setback of the building as approved is not changing by adding a roof and columns over it. Mr Laymans' opinion is that rear setbacks vary according to level.
8. When shown a photograph from the Statement of Environmental Effects (SEE) forming part of Ex A, Mr Layman said: "The setbacks are generally consistent, not in a militant straight line, but they do step back. There is a generally consistent setback."
9. The relevant objective is Objective 8 of Clause 4.2 of the MRDCP which states: "To have rear setbacks which complement existing setbacks and which provide sufficient space for substantial planting, provide adequate separation of buildings and have regard to cross views of neighbouring properties."
10. The relevant Planning Control, P19 is expressed in similar wording.
11. The Respondent submits that the proposed rear roof and columns over the balcony at the second level of the building do not comply with objective O8 of cl 4.2 of MRDCP or with the planning control, as they are an inconsistent element within the rear setbacks of Carrington Avenue and do not have regard to cross-viewing of neighbouring properties, as outlined previously.
12. The Respondent submits that the photographs in the SEE in Ex A do not assist the Court as those on Pages 6 and 7 fail to demonstrate the context of the rear setbacks that is, the angled street and angled foreshore. In contrast, the aerial photograph at Page 21 of Ex 1 (being the SOFAC in the Modification Application Proceedings is of more assistance and shows a consistent rear setback of the two story level.
13. I have already considered the rear setback or alignment above at par [63] and confirm my conclusion.
14. I accept the Applicant's submission at par 58 of written submissions that: "It is not an objective to protect views at large. If the Court is satisfied under Contention 7 that there is no unreasonable view loss, it would also be satisfied that the proposal has regard to cross views of neighbouring properties."
15. Accordingly, the view loss contention will now be addressed.

View loss - contention 7

1. The Respondent contends that the proposed roof structure over the second level terrace and columns has an adverse impact on the views and outlook from 2 Bay Street and the Applicant acknowledges that there will be some impact which is set out in further detail at par [84] below.
2. This contention overlaps with the earlier contention 3 as to the achieving the aims of the MLEP to the extent that the Respondent contends that the Terrace Roof Structure does not have adequate regard to local amenity and will result in the loss of views from a neighbouring property. At particular b) of Contention 7, the SOFAC states that the Proposed Modification would not retain views from adjoining residential lots to water and foreshore reserves, and the relevant aims of the MLEP are as follows: Cl 1.2(e) to recognise, protect and enhance the natural, visual, environmental and heritage qualities of the scenic areas of Mosman and Sydney Harbour and to protect significant views to and from the Harbour, Cl 1.2 (f) to retain views to and from water and foreshore reserves and public areas from streets and residential lots,
3. Views were considered and assessed by the Council Officer as evidenced in the DA Assessment Report (Tab 14, Pages 368 to 370 of Ex 5). A photograph on Page 369 shows the view from the first floor bedroom of the adjoining property at 2 Bay Street. The reasons given by the consent authority did not separately consider views other than to generally concur with the planning officer's report. This is set out in further detail at par [84] below.
4. The Respondent submits that the Court can clearly see the incremental impact in terms of view loss of trees and water caused by the (presently unlawful) terrace roof and columns by comparing the photograph on Tab 14, Page 369 of Ex 5 and the photographs at Tab 9 on Page 363 and 367 of Ex 5, being in the Council Officer's report on the Modification Application.
5. The Respondent relies on the decision, Rebel MH Neutral Bay Pty Ltd v North Sydney Council (2018) 241 LGERA 107; [2018] NSWLEC 191 where Moore J found that trees are "part of the view" and views of trees were "a pleasant and verdant outlook" which should be protected. Paragraphs [80]-[84] are set out below (note, bold and italics emphasis are in the original decision): "80 Next, the suggestion that part of the view is already blocked by existing vegetation entirely ignores the fact that the vegetation forms part of the view. The assertion to the contrary, in (18) of Mr Hale's submissions, is a bald assertion unsupported by evidence or authority. The view to the vegetation is proposed to be replaced, to much more than a negligible extent, by built form. This is an impact on the view from this location. The trees do not block the view, they merely block the view of that which is beyond the trees. They are part of the view. 81 Although from a merit decision given in a matter pursuant to the Trees (Disputes between Neighbours) Act 2006, the proposition in Haindl v Daisch [2011] NSWLEC 1145 at [26] that a view relates to the totality of what can be seen from the viewing location, is equally appropriate here. The assertion by Mr Hale in (17) of what should be regarded as the relevant views is not correct. 82 Whilst the view of this vegetation is, perhaps, not the same in a qualitative sense as might be a view to a rainforest canopy, nonetheless the view of the vegetation from this window (which would be lost if the height exceedance was to be permitted) is a pleasant verdant outlook. 83 Indeed, because the view of the vegetation is derived, primarily, from a tree that is on the property to the west of the site (a tree which would not be required to be removed if this development was to be approved), the view to this vegetation is one which would significantly be reduced if the cl 4.6 request was sustained. 84 It is to be observed that, if a height-compliant development was erected on the site, this would protect a significant portion of this verdant view."
6. It was for this, among other reasons, that a cl 4.6 request in that case was not upheld by Moore J in this decision.
7. Mr Layman's evidence in cross examination was that the roof of the terrace blocked views of land and water interface.
8. At par 72 of written submissions, the Respondent submits that "contrary to the submission of the applicant that no standards or planning controls were breached the Council says that the rear setback control is breached as stated above and has adverse impacts on views. No doubt the applicant and future occupants of 1 Carrington Street will enjoy views from the rear windows and glassed area at the rear of the house and from the terrace these views are not impacted by the roof of the terrace."
9. The Applicant makes the following submission regarding view loss which is consistent with my conclusions, and as such I include the extract from the written submissions and adopt these reasons as follows: "61. With regard to the view loss assessment of the Council Officer referred to at [68] of the Respondent's Submissions, the Officer's comments should be read in full. This includes noting: "view loss from the proposal to be negligible" (p370 Exhibit 5); "Views available from other areas within residential buildings generally will not be protected particularly if views are available from living and entertainment areas in the building concerned." (p369 Exhibit 5). 62. The Applicant does not deny that a partial view of some tree canopy can be considered a view for the purposes of Tenacity and Part 4.3 of the DCP. However, despite being characterised by Mr Layman as land and water interface, or in the Written Submissions at [68] as "trees and water", it is plain from the photographs at p. 336 of Exhibit 5 that the views lost are a sliver of tree canopy, located clear above any views of water or land and water interface. 63. Further, in undertaking an analysis as against Part 4.3 of the DCP/Tenacity, would keep in mind that it is only a small sliver of view loss, of tree canopy, over a side boundary, not of an iconic view, and only from a single bedroom (Bed 3). 64. The circumstances, and specific view loss, in this case, are very different from those in MH Neutral Bay. That case does not assist the Court in determining the merits in this case. 65. Most importantly, the Written Submissions ignore entirely Part 4.3 of the DCP. The methodology set out in Part 4.3 (p. 19 of the DCP), and the controls P4-P10 which underpin objective O2 are to be the focal point of the Court's analysis of view loss. 66. Both the methodology and controls are clear. It is views from living and entertainment areas that are to be protected, and "views available from other areas within residential buildings generally will not be protected particularly if views are available from living and entertainment areas in the building concerned." 67. Mr Layman attended 2 Bay Street. Mr Layman was cross-examined regarding his site view at 2 Bay Street, and his answers confirmed that the dwelling on 2 Bay Street is laid out in the manner shown in the real estate plan in Exhibit H. The objector from 2 Bay Street, Ms Gardiner, confirmed that 2 Bay Street has not been modified since their purchase in late 2018, and the photographs of 2 Bay Street and taken by the Applicant (Exhibit K) and drone footage all reflect that same layout in regard to the location of the living/dining room, kitchen, roof terrace/garden, master bedroom, and northward decks. The Court can therefore be confident that it can assess view loss from 2 Bay Street by reference to the real estate plan in Exhibit H. 68. In cross-examination, Mr Layman conceded that views to the north and north-west to Quakers Hat Bay will not be impacted by the development from the living and dining room, from the roof terrace/garden (from the mid-point according to Mr Layman), or from the decks located forward of the roof terrace/garden. 69. With regard to paragraph [72] of the Respondent's Submissions, this misses the point. One cannot pick a DCP objective in one part of the DCP (view loss) and rely on a control in an entirely different part of the DCP (rear setbacks) to argue that the objective is breached. The control breached must relate to that objective. The Council did not contend that any controls in relation to view loss, i.e. Part 4.3 of the DCP, were breached. (And indeed, examined properly, no controls are breached). It is irrelevant to the objectives in Part 4.3 of the DCP whether a different control in a different section of the DCP is breached. 70. Accordingly, when a view loss analysis is taken against Tenacity and Part 4.3 of the DCP, we submit that the only reasonable conclusion is that the controls in Part 4.3 are complied with (and indeed the Council has not contended otherwise), and therefore, it must be the case that objective O2 of the DCP is met."
10. In addition, I have considered the DA Assessment Report which in the context of deemed State Environmental Planning Policy, Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (Folio 363 Ex 5 Vol 2) which notes the following assessment: 1. Foreshore and waterways scenic quality: The proposal is not considered to reduce scenic quality. 2. Maintenance, protection and enhancement of views: The proposal is not considered to impact private or public views.
11. Finally, I consider the view sharing assessment at point 4.3 in the DA Assessment Report, with which the consent authority generally concurred, (Folio 368, Ex 5 Vol 2) and at folio 369 concludes relevantly as follows: "A site inspection of 2 Bay Street (dated 13 April 2018) determined the extent of view loss from the proposal to be negligible. The views available from the neighbouring property are from bedrooms and obtained across the site (side boundary) and are significantly restricted. Notwithstanding, the recommendation includes a condition which requires the deletion of an elevated rear terrace with screening and roof cover which should minimise view loss impacts incurred."
12. The Consent authority approved the elevated rear terrace with the screening and only required the deletion of the roof for reasons related to bulk. View impacts were not mentioned by the consent authority.
13. Accordingly, for these reasons, I am satisfied on balance that the view loss is minimal to the adjoining property at 2 Bay Street and the extent of that loss is from areas within the dwelling which do not include living areas. I accept the evidence of Mr Layman that views to the north and north-west to Quakers Hat Bay will not be impacted by the development from the living and dining room, from the roof terrace/garden (from the mid-point according to Mr Layman), or from the decks located forward of the roof terrace/garden.

Overshadowing - contention 8 (shadow diagrams Tab 5 Ex A)

1. The final merit contention raised by the Respondent relates to overshadowing and it is relevant that the Council agrees that the controls in Part 5.8 of the MRDCP are complied with, however the Respondent's concern is that the objective relating to minimising overshadowing is not met if the structure is to be approved. The Respondent submits at par 75 of written submissions that this was one of the reasons for the imposition of Condition 2.
2. Earlier in this judgment I gave detailed consideration of the reasons by the consent authority for the Original Consent and overshadowing set out above at par [29]. The Applicant submits at par 71 of written submissions that the extent of afternoon overshadowing has been considered and that the "overshadowing caused by the proposal is de minimis. It causes minor overshadowing of planter boxes located on the boundary of 2 Bay Street at 3pm on 21 June 2021."
3. On the basis that the afternoon overshadowing impact of the proposed modification is limited to the planter boxes located on the boundary, I accept the Applicant's submission that this is not a reason to refuse the application.

Conclusion and finding of the Modification Application Appeal on merit

1. I undertake one final step in my determination and that is to acknowledge that the Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP) applies to the Site. The Site is within the Foreshores and Waterways area and Pt 3 of the SREP applies and cl 20 requires the matters in Div 2 of Pt 3 to be taken into consideration. This is dealt with in the Council officers report on the modification application at page 330 of Ex 5, and also in more detail in the Council report on the development consent at page 363 of Ex 5 paragraph 7.1 and was found acceptable (refer to par [86] above). Accordingly, I am satisfied that cl 20 of the SREP has been complied with.
2. Having undertaken the merit assessment in response to the contentions raised by the Respondent, I reach the conclusion that the Modification Application Appeal should be upheld for the reasons set out above.
3. I will now briefly address the BIC Appeal.

BIC Appeal

1. The BIC Application is made pursuant to s 6.23 of the EPA Act. In order to have jurisdiction to determine the BIC Application, the Court must be satisfied that: 1. a person identified in s 6.22 of the EPA Act has made the application for the BIC; and 2. the application was made to the Council for the area in which the land to which the BIC Application relates under s 6.23(1).
2. The respondent has not raised an issue with regard to the requirements of s 6.22 or s 6.23(1) of the EPA Act. However, the Respondent has referred to s 6.25(1) in Contention 1 of its SOFAC in the BIC Appeal. It is agreed that structural certification has been provided in relation to the Terrace Roof Structure.
3. A building information certificate may be issued by a Council pursuant to s 6.25(1) only if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993 - (i) to order the building to be repaired, demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (iii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council, or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.
4. As the structural integrity of the Terrace Roof Structure is resolved and agreed pursuant to the Structural Certificate dated 22 July 2021 (Ex F), the parties agree that if the Modification Application Appeal is upheld then the BIC Appeal should be also upheld and the Council be then directed to issue a Building Construction Certificate.
5. The Applicant agrees with the Respondent that the Court's decision in relation to the BIC Appeal, and s. 6.25 of the EPA Act, would follow its decision on the merits of the Modification Application Appeal, and the matters identified in contentions 3 to 9 of the SOFAC. Contention 9 of the BIC Appeal SOFAC (Ex 2) relates to the public interest which I consider next.

Public Interest - contention 9 BIC Appeal

1. This contention relies on the detrimental impact on adjoining owners to support the refusal of the BIC Appeal on the ground of public interest.
2. The Court has heard from objectors of 3 Carrington Street and of 2 Bay Street. The objectors have different concerns though the Respondent submits there is a singular theme that the bulk and scale of the proposed roof and columns is unacceptable.
3. The Respondent relies on the evidence of Mr Layman who states in his evidence on page 16 of the Joint Expert Report that the proposed retention of the elevated terrace roof and supporting structure would not be in the public interest and explains as follows: "The removal of the elevated terrace roof and supporting structure does not hinder opportunities for views and general amenity from and for the development itself. However the retention of the elevated terrace roof and supporting structure impacts appreciably on the outlook for neighbours particularly No 2 Bay Street. The minimisation of visual impact of development on Sydney Harbour foreshore lands is in the public interest."
4. I have considered the impacts of the roof terrace structure in the merit assessment of the Modification Application Appeal and my conclusion is that the public interest is not detrimentally impacted by the favourable merit approval.
5. Pursuant to s 8.25(3) of the EPA Act, on hearing the BIC Appeal, the Court may do any one or more of the following: (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate.
6. For the reasons given in this judgment and following the approved modification of consent, I conclude that it is appropriate to direct the council to issue a building information certificate in the terms sought by the Applicant pursuant to s 8.25(3)(a).

Orders - Modification Application Appeal

1. The Court orders that 1. The appeal is upheld. 2. Development Consent No. DA 8.2018.6.1 is modified in the terms in Annexure A. 3. Development Consent No. DA 8.2018.6.1 as modified by the Court is Annexure B.

Orders - Building Information Certificate Appeal

1. The Court orders that: 1. The Appeal is upheld. 2. The Respondent council is directed pursuant to s 8.25(3) of the EPA Act to issue a building information certificate in the terms sought by the Applicant in Building Certificate Application No. 4.2021.39.1 for part of a building being a 'terrace roof structure'.

Commissioner of the Court (Annexure A) (180216, pdf) (Annexure B) (331504, 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: 04 April 2022