Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council

Is the Proposed Modified Development substantially the same as the development for which consent was originally granted?

1. The Proposed Modifications are sought under s 4.55(2) of the EPA Act which requires a positive opinion to be formed as to whether the Proposed Modifications are substantially the same development as the development for which consent was granted. This is a jurisdictional prerequisite of s 4.55(2)(a) of the EPA Act.
2. The Respondent's case articulated in written submissions is that the applicant has failed to establish that the Roof Modification will be substantially the same as the development for which consent was originally granted.
3. The parties explained to the Court that the original development consent DA18/1391 approved the demolition of existing structures, construction of a residential flat building containing 15 units, basement parking and 4 pools with strata subdivision subject to design change conditions imposed by the Sutherland Shire Local Planning Panel on 21 July 2020. The deferred commencement condition 3 required the amendment of certain plans and the Applicant confirmed that "rather than provide that information in the normal way with respect to activating a deferred commencement consent, a modification application was made and that for the purpose of s 4.55(2)(a) of the EPA Act". It is agreed that the plans contained at Tab 11 of the Respondent's Bundle of Documents (Exhibit 3) is the full set of approved plans pursuant to the original development consent and are stamped by Sutherland Shire Council referencing DA18/1391.
4. The Applicant's case is that the Proposed Modifications, including the Roof Modification, is substantially the same as the development for which consent was granted and the Applicant relies on the plans and documents annexed to the Joint Expert Report prepared by Jeff Mead, Consultant Planner for the Applicant and Damon Kenny, Development Assessment Planner for the Respondent filed 20 July 2021 (JER) (Exhibit 3) and these plans are referred to by the Applicant as the 17 May plans (Exhibit D).
5. The Applicant, in opening confirms that the Roof Modification seeks to increase the size and height of the building by 1.58m. The Applicant refers to the JER as evidence that the resulting overall height of building if the Proposed Modification were to be approved would be a building that is 2.73 m above the 25 m height plane (Transcript 22 July 2021, p 48 at 3520). The Site is subject to a maximum building height development standard of 25 m.
6. The planning experts agree that the 17 May 2021 plans reduce the height to 27.737 m, providing for a variation of 2.737 m (JER p 5 at par 1.4 - Exhibit 2) and that the "approval provided for a maximum height of 26.15m, a variation of 1.15m. Height compliance could therefore not be said to have been fundamental to the decision to grant consent." (JER p 5 at par 1.1 - Exhibit 2).
7. The Respondent relies on the legal principles relevant to the power to modify a development consent which are summarised by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [173] as follows: "(1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); (2) the modification power is beneficial and facultative (Michael Standley at 440); (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); (7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52])."
8. The Applicant relies on the decision I gave earlier this year in the matter of Parseh Cronulla Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1248 at [6] where I summarise of the jurisdictional prerequisite that must be satisfied of whether the Proposed Modification will result in substantially the same development as the development for which consent was originally granted and I say: "[6] … As to whether the modification substantially the same development as the development for which consent was originally granted, the power to modify a consent is a power "to alter without radical transformation" the consent (Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163). The result of the comparison between the original consent and consent as modified must be a finding that the development is "essentially" or "materially" the same as the approved development (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto); Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8; Arrage v Inner West Council [2019] NSWLEC 85). Both a qualitative and quantitative comparison is required (Moto)."
9. The Respondent submits that an assessment of the qualitative and quantitative features of the development as proposed to be modified against the development for which consent which was originally granted demonstrates that the Roof Modification does not satisfy s 4.55(2)(a) of the EPA Act.
10. Before undertaking the qualitative and quantitative assessment of the Roof Modification, being the only modification sought by the Applicant which is in dispute between the parties, I have considered the submissions of the parties and the evidence of the experts regarding the balance of the modifications sought, namely: 1. consolidation and changes to unit layouts on levels 1 and 2 reducing the total number of units to 11 three bedroom units; 2. reconfiguration of ground level balcony spaces; and 3. deletion of condition requiring levels 4, 5 and 6 (including roof) to be setback from the rear balcony and modification of deferred commencement conditions of consent.
11. I adopt the reason as set out by Mr Mead in the JER regarding the western setback at par 1.11 as follows: "In quantitative terms, it has been agreed that the proposal will not cause any non-compliance with the ADG with regard to the western setback. It is also agreed that spatially, and in terms of bulk and scale, that the western setback is acceptable. The proposal will continue to comply with the maximum FSR control. The proposal does not change the number of apartments within the development and the building form and typology does not change in essence. Qualitatively, the change to the rear setback will not change the appearance of, or the impacts of, the building in a manner that will radically transform the original proposal."
12. Having considered the position of the parties and the evidence of the experts, I am satisfied that the Proposed Modification limited to the west/rear balconies and the internal changes are not in dispute and experts agree on impacts being acceptable. The power to modify the consent is facultative (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468). For these reasons I have formed the positive opinion that the modifications listed at [18] are substantially the same development as the development for which consent was originally granted.

Qualitative assessment of the Roof Modification:

1. I now focus on the Roof Modification. The experts do not agree that the Roof Modification is substantially the same. The SOFAC (Exhibit 1) particularises 3 points for the qualitative assessment of the Roof Modification as follows: "From a qualitative sense the development is not substantially the same because: (vii) The functionality of the roof top terrace is substantially different from what was originally approved; (viii) There was to be no more than 7 storeys at the front and 8 storeys at the rear; (ix) The resultant built form goes beyond that anticipated by the planning controls."
2. Mr Mead responds to each of the SOFAC qualitative assessment particulars in the JER. In relation to the Roof Modification, Mr Mead at par 1.12 gives the following expert opinion: "The original approval contained a swimming pool at the upper level. The change in its location and shape is a product of other design changes at this level and does not materially change the essence of the proposal." "The original approval contained a terrace at the upper level. Changes to its size and configuration do not essentially or materially change the development, with that terrace continuing to serve the upper level unit and having a similar spatial relationship to adjoining development." "The proposal, like the original approval, continues to comply with the maximum FSR control." "An increase in height to the proposal does not radically transform it. The original approval breached the height limit and therefore the current proposal does not introduce this breach. The increase in height does not change the essence of the approved development." "The roof top remains a useable area for residential purposes, as approved. The inclusion of internal floor space at this level in addition to the originally approved outdoor space does not change the essence of the approved residential flat development." "The original approval included useable space for residential purposes at the upper level and would have had impacts from that use. Whether the internal space technically introduces an additional 'storey' does not radically transform the approved development."
3. Mr Mead concludes as follows (JER at par 1.12 p 7): "In summary it is my opinion that when the modification is compared with the approval as a whole, it is essentially and materially the same. Further, the proposal does not modify any particular element which was essential or material to the original approval in a manner that would render it "not substantially the same"."
4. Mr Kenny is of the opinion from a qualitative point of view that the development maintains the same multi-storey residential form of development however, the additional building height will have additional impacts relative to those that arise from the approved development. It will change the extent and nature of overshadowing to the properties to the south (JER, at par 1.20).
5. During oral closing submissions the Respondent seemed to concede that the additional height and the changes proposed to the roof terrace was virtually another level above the height control (Transcript 23 July 2021, p 111 at 13, emphasis added) and the Respondent seemed to be primarily concerned, from a qualitative perspective, with the Roof Modification creating the opportunity for a future modification application to enclose the 'external' kitchen, lounge and dining room and possibly create a separate unit on the uppermost floor (Transcript 23 July 2021, p 115 at 42, emphasis added).
6. I am satisfied that the Roof Modification will not result in an additional storey from a qualitative assessment because the walls remain open and the facilities are for all intents and purposes outdoor facilities. I will deal with the additional storey issue again from a quantitative perspective separately below. Any possible future modification will be assessed on its own merits and is not the subject of my determination in these proceedings.
7. Mr Kenny is of the opinion that the additional height will result in additional bulk and scale than that anticipated or approved (JER at par 1.20) and that the Proposed Modification is "well in excess of the intended height and scale resulting in inconsistent and disorderly outcomes." (JER at par 1.23).
8. I conclude, on balance and having considered the evidence and submissions on the qualitative assessment of the Roof Modification, that the roof functionality has increased substantially notwithstanding that I am satisfied that it does not result in an additional storey. The approved roof terrace provides for a pool and passive outdoor recreation whereas the Roof Modification substantially modifies the functionality of the roof terrace by the addition of other uses. The quantitative assessment table prepared by the Respondent which appears below also addresses the facilities on the roof and I have considered these additional facilities in reaching this conclusion.

Quantitative assessment of the Roof Modification:

1. Contention 1(f) of the SOFAC relies on 6 points for the quantitative assessment of the Roof Modification as follows: "In a quantitative sense the development is not substantially the same development because: (i) The location, shape and dimensions of the pool on the upper level have changed; (ii) The location, shape and dimensions of the terrace on the upper level have changed; (iii) Additional built form on the upper level which increases the floor space of the development; (iv) Habitable space of 143.6m2 containing various room has been added to the upper level resulting in non-compliance with Council's FSR development standard; (v) Additional storey which increases the height of the development beyond the height standard; (vi) …"
2. The Respondent summarises the expert evidence comparison from the JER as a breach of the height control for the original consent was relatively minor 1.15 m (4.6%) but would be greater for the modified consent 2.737 m (10.9%). The Respondent further summarises the following from the JER: 1. Location and extent of the breach of the height control will be much greater than the location and extent of the breach of the height control under the existing consent. See height plane studies at DA06.010 Rev F and DA06.10.1 Rev A in Exhibit H. 2. Location and extent of the breach of the height control will cause additional overshadowing of southerly neighbour. See Shadow Study at DA06.06 Rev C in Exhibit H and Solar Access Analysis in SK11 and SK 12 In Annexure C to Exhibit 2. 3. Location and extent of the breach of the height control will cause the building to be inconsistent with the existing development in Tonkin Street and inconsistent with the desired future character of Tonkin Street. See Photomontage in DA 60.17 Rev C in Exhibit H. 4. The circumstances in which the consent was granted are described in the report of the Sutherland Shire Local Planning Panel (Panel) dated 21 July 2021 (Exhibit 3 Tab 8). A minor breach of the height control was permitted. The proposed development would not be development of a form and scale envisaged and encouraged by the SSLEP standards. It is clear from their reasons that the Panel would not have approved the current modification application.
3. The JER provides a quantitative comparison of the development as originally granted consent and the development as proposed to be modified which the Respondent summarised in the following table relating to the roof top only as the west/rear setback Proposed Modifications are not in dispute. I have included some notes in the table in italics where appropriate to identify some items that are not agreed and require further explanation. Feature Original Consent Modified Consent Number of storeys 8 9 Note: the Applicant disputes the additional height is an additional storey Maximum height 26.15m 27.74m Cumulative façade area exceeding height of building control* 1.79m² 115.3m² Note: Mr Mead does not agree that this is a relevant measure or test Useable roof top area 85.65m² 277.45m² Rooftop facilities Terrace, pool, pool fence, planters, pool equipment store Terrace, pool, pool fence, planter, outdoor shower "external" kitchen/lounge/ dining, laundry, WC, lift, plant room, office & balcony, WIR, ensuite, guest room & balcony, stair and foyer

• the extent to which the perimeter walls exceed the height of building control of 25m.

1. I acknowledge that the Respondent said in closing submissions that the Court's task to navigate the 'not substantially the same' argument in this matter was unenviable and provided numerous authorities dealing with whether an additional storey to a building is substantially the same as the development for which consent was originally granted and which may be of assistance to the Court when considering this threshold matter. The summary is as follows: 1. Ozzy States Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1413, Commissioner Gray held an additional storey was not substantially the same because the 3-storey character of the original consent was an essential element of that consent. See [31]-[33]. 2. Tasman Property Holdings Pty Ltd v Canterbury-Bankstown Council [2019] NSWLEC 1310, Commissioner Smithson held an additional storey was not substantially the same because it caused a breach of the height standard which did not exist under the original consent. See [97]. 3. Iris Diversified Property Pty Ltd v Randwick City Council [2011] NSWLEC 1038, Commissioner Brown held an additional storey was not substantially the same because of qualitative impacts of the additional storey. See [14]. 4. Hercules St Developments Pty Ltd v Ashfield Council [2015] NSWLEC 1378, Commissioner Fakes held that additional units on the uppermost storey was not substantially the same because the layout of the upper floors was an important and material feature of the original consent. See [38]-[50]. 5. Innerwest 888 Pty Ltd v Canterbury-Bankstown Council [2017] NSWLEC 1241, Commissioner Morris held that an additional storey accommodating 10 units was not substantially the same because the 5 storey height of the original consent was an essential feature and the development as modified would be qualitatively and quantitatively different to that for which consent was granted. See [55]-[59] Note "not" is missing from [59].
2. It is trite to say that each case will turn on its own facts and circumstances and that I am not bound by these decisions. I have considered the evidence and facts before the Court in these proceedings in order to form the requisite opinion and state of satisfaction.
3. The Applicant submits that the modification sought of an additional 1.58 m will result in a total additional height of 2.737 m above the maximum height development standard of 25 m. The Applicant notes that the dimensions in a normal storey of a residential flat building is a minimum height of 3.3 m (Transcript 22 July 2021, p 48 at 2) and that the additional 1.58 m falls well short of the height of a storey and that the total additional height above the 25 m is also less than the height of a storey. I agree with the Applicant that the Roof Modification does not result in an additional storey.
4. Regarding the Roof Modification, I am unable to form the positive opinion and I conclude that the Roof Modification is not substantially the same development as the development for which consent was originally granted. I draw on the reasons set out above and I also refer to the comparative images included below at [51] and [52] (height plane study and northern elevation) and I set out my findings and conclusions as follows: 1. The Roof Modification will not result in an additional storey because from a qualitative perspective it is an outdoor roof terrace and the additional facilities of themselves do not create an additional storey and from a quantitative perspective, the additional height is not sufficient or the equivalent to a whole storey. 2. The actual area of roof has substantially increased and is quantitatively substantially different. 3. The functionality of roof has increased substantially and provides significant qualitative changes to the amenity and use of the roof to beyond swimming and passive recreation and adds facilities and other additional uses including, but not limited to, meal preparation and consumption by means of the outdoor kitchen and outdoor dining. Quantitively, the additional facilities are substantial as set out in the table.
5. Therefore, on balance, I have not been able to form the positive opinion and I am not satisfied that the Proposed Modification to the roof top is substantially the same as the original development consent.
6. In the event that I am wrong and jurisdictional hurdle is otherwise able to be overcome, I will now address the outstanding merit contentions being the impacts of the Roof Modification on the public domain and on the property to the south of the Site.

Are the impacts of the Roof Modification acceptable? (Merit assessment) - Contention 3 Unacceptable height

1. The Respondent submits that even if that jurisdictional hurdle of s 4.55(2)(a) of the EPA Act can be overcome the Roof Modification does not achieve merit approval (s 4.55(3) of the EPA Act) due to: 1. the significant breach of the building height control in cl 4.3 of the SSLEP; 2. the adverse visual impact of the proposed development from many vantage points in the public domain; 3. the inconsistency of the proposed development with the existing buildings in Tonkin Street and the desired future character for Tonkin Street; 4. the additional overshadowing caused to the apartments within 15-17 Tonkin Street for many months of the year; 5. the inconsistency of the proposed development with the objectives of the B3 zone and the height of buildings development standard of cl 4.3 of the SSLEP; and 6. the undesirable precedent an approval of this application would set for future development of a similar nature.
2. The second Contention pressed by the Respondent has two aspects, firstly the unacceptable height, bulk and scale when viewed from the public domain and secondly, the impact of height, bulk and scale on the property to the south, resulting in overshadowing.
3. The Respondent submits that the height, bulk and scale of the roof top additions substantially breach the height of building control as clearly demonstrated by the height plane studies in DA06.10 Rev F and DA 06.10.1 Rev A in Exhibit H.
4. The height of building development standard in cl 4.3 of the SSLEP provides as follows: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to ensure that the scale of buildings - (i) is compatible with adjoining development, and (ii) is consistent with the desired scale and character of the street and locality in which the buildings are located or the desired future scale and character, and (iii) complements any natural landscape setting of the buildings, (b) to allow reasonable daylight access to all buildings and the public domain, (c) to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion,
5. I will first deal with the public domain and then with the impacts on the adjoining penthouse unit to the south of the Site.

Are the impacts of the height, bulk and scale on the public domain acceptable?

1. The first element of this contention is the impact of the Proposed Modified Development on the public domain and whether this is acceptable.
2. The Respondent submits as follows in relation to the impact of the Roof Modification on the public domain: 1. The height, bulk and scale of the proposed development will cause adverse visual impacts when viewed from the public domain particularly from areas within a 180º radius to the east of the development, namely: 1. to the north and south along Tonkin Street 2. the intersection of Waratah Street, Nicholson Parade and Cronulla Street 3. Cronulla Street including the intersection with Laycock Ave (see Photomontage DA06.17 Rev C in Exhibit H) 4. Monro Park (a heritage item) 5. Cronulla Station and trains at or approaching the station. 1. The Roof Modification would have a height, bulk and scale that would be inconsistent with the existing buildings along Tonkin Street. The existing buildings in Tonkin Street are unlikely to be redeveloped in the short to medium term due to their relatively young age and the nature of those buildings (strata title). The upper floor level of the Proposed Modification would stand three floor levels above most existing buildings in Tonkin Street. 2. The Roof Modification would also have a height, bulk and scale that would be inconsistent with the desired future character of Tonkin Street as reflected in the 25 m height limit in SSLEP. Its upper level would stand almost a full floor level above development which could be expected under the current SSLEP controls.
3. The Site location is such that the Respondent relies on and I have considered Chapter 19 B3 Commercial Core in Cronulla of the Sutherland Shire Development Control Plan 2015 (SSDCP 2015) (Tab 18, Exhibit 3) which provides at page 6: "While the railway cannot be changes, work that will improve connectivity between Gunnamatta Bay and Cronulla Beach should be prioritised. All types of connection will improve the perception of the space whether they are visual connections, physical connections or habitat links."
4. The Applicant submits that the relationship to Tonkin Street, Waratah Street, Gunnamatta Bay and the public domain to the east of the railway line will benefit from this development (Transcript, 23 July 2021, page 106 at 43). I agree and accept that the development as approved is as per the Applicant's description however my task is to consider the impact of the Roof Modification on the public domain.
5. The height approved for the building is 26.15 m which is higher than the maximum building height development standard of 25 m. The expert planners agree that "height compliance could therefore not be said to have been fundamental to the decision to grant consent." (JER pars 1.1 and 1.7). The expert planners also agree that "a significant determinant of building bulk is the FSR control and that the proposal complies with this." (JER at par 3.10).
6. In relation to the visual impact of the Roof Modification on the public domain, Mr Kenny expresses some concern in the JER at par 3.21 as follows: "The proposed highest elements proposed by the modification would likely be visible from some 230m away from the intersection of Waratah Street and Nicholson Parade, from various aspects of Munro Park and from Cronulla Station. This is a highly visible location, and it is anticipated that it will be some time before the other properties along Tonkin Street will be redeveloped. I am of the opinion that the additional height, bulk and scale will be highly visible and results in an unacceptable planning outcome with no reasonable justification to further vary the development."
7. Mr Mead's responds (JER at par 3.16): "DK is concerned with the appearance of the upper level from the opposite side of the railway line at the frontage of Monro Park. In response to this, it is my opinion that from this vantage point, the building will read as part of a collection of residential flat buildings set within a high density zone and will be contextually appropriate. This is shown on Sheet DA06.17 of the architectural set. Further analysis is provided on Sheets DA04.05 and DA4.06F which shows a distinct variation or stepping in building heights. The eastern elevation of the proposal is compliant with height with the exception of the roof slab and parapet and as such is generally reflective of the scale of development envisaged by the current planning controls. While these controls allow for greater height than the existing building on immediately adjoining sites, the development remains contextually appropriate due to the varied widths, heights and architectural styles of buildings along Tonkin Street. The most recent residential flat building at 25-29 Tonkin Street, which was approved under the current controls, is similar height to the proposal and in fact was approved with a height breach. This building also adds to the variation in built form along Tonkin Street. The viewing point on the opposite side of the railway is some 90m away and the building will form part of the urban character generally rather than being dominant. Similarly, within Monro Park, the building will not be immediately apparent in view from the park other than as part of a collection of high density buildings some distance away. There is a row of trees along the western side of the park which will further obscure views to the site."
8. In the context of the concern raised by Mr Kenny about how the Proposed Modification will look when compared with the view cone or the view from Monro Park, the Applicant refers to Drawing 6.10F Height Plane Study - Proposed (Exhibit H) and Drawing 6.10.1A Height Plane Study - Approved. The Applicant focuses on the proposed façade and notes that the whole of the façade along that edge of the building is 540 mm above the approved height and says that this is important because that is the view impact increase that one would see from Monro Park 230m away (Transcript 23 July 2021 p 100 at par 25). I include these as Fig 1 and Fig 2 below. Figure 1: Drawing 6.10F Height Plane Study - Proposed Figure 2: Drawing 6.10.1A Height Plane Study - Approved
9. A review of Figs 1 and 2 is useful together with a review of the Northern Elevation drawings Drawing 04.01I (Exhibit D) and Drawing 04.01G (Tab 11 Exhibit 3) which are extracted and included at 1.24 in the JER (page 10) and I include them in the judgment as Fig 3 and Fig 4 to further illustrate the differences between the approved development and the Proposed Modification. Figure 3: Drawing 04.01I Northern Elevation Figure 4: Drawing 04.01G Northern Elevation
10. The Applicant relies on the planning principle set out in the decision of Veloshin v Randwick Council [2007] NSWLEC 428 ('Veloshin') which provides as follows: "32 Because of the frequency with which height, bulk and character are matters in contention, it is useful to establish planning principles to guide how they may be assessed.

Planning principle: assessment of height and bulk · The appropriateness of a proposal's height and bulk is most usefully assessed against planning controls related to these attributes, such as maximum height, floor space ratio, site coverage and setbacks. The questions to be asked are: Are the impacts consistent with impacts that may be reasonably expected under the controls? (For complying proposals this question relates to whether the massing has been distributed so as to reduce impacts, rather than to increase them. For non-complying proposals the question cannot be answered unless the difference between the impacts of a complying and a non-complying development is quantified.) How does the proposal's height and bulk relate to the height and bulk desired under the relevant controls? · Where the planning controls are aimed at preserving the existing character of an area, additional questions to be asked are: Does the area have a predominant existing character and are the planning controls likely to maintain it? Does the proposal fit into the existing character of the area? · Where the planning controls are aimed at creating a new character, the existing character is of less relevance. The controls then indicate the nature of the new character desired. The question to be asked is: Is the proposal consistent with the bulk and character intended by the planning controls? · Where there is an absence of planning controls related to bulk and character, the assessment of a proposal should be based on whether the planning intent for the area appears to be the preservation of the existing character or the creation of a new one. In cases where even this question cannot be answered, reliance on subjective opinion cannot be avoided. The question then is: Does the proposal look appropriate in its context? Note: the above questions are not exhaustive; other questions may also be asked."

1. The Respondent submits that the answer to each of the questions posed in Veloshin will be "no" and the Respondent goes on to explain the submission as follows: "I am not going to make the submission that this proposed development would stick out like a sore thumb. It's probably more like a baby's first tooth rising up from the lower jaw. It is a narrow slender building that will sit high above its adjoining gum." (Transcript 23 July 2021, page 117 at 45)
2. On balance I prefer the evidence of Mr Kenny in relation to the visual impact on the public domain. I am satisfied that, although the proposed height will exceed the max height by 540 mm along the entirety of the façade of the building as viewed from the public domain, there will a significant and overall increase in visual impact from the public domain, and this is an important merit consideration as the Site is located within an area which the SSDCP expressly addresses as quoted above at [45].

Are the impacts of the height, bulk and scale on the property to the south acceptable?

1. The final merit contention relates to the impact of Roof Modification on the property to the south and whether the impact is acceptable.
2. The Respondent submits that the height and bulk of the Proposed Modified Development would significantly increase overshadowing to 15-17 Tonkin Street as demonstrated in the Shadow Studies at DA 06.06 Rev C and DA 06.06.1 Rev A in Exhibit H and the Solar Access Analysis SK11 and SK12 in Annexure C of Exhibit 2. The increased overshadowing would be experienced for many months between the autumn and spring equinoxes.
3. I accept the evidence that there will be increased overshadowing to 15-17 Tonkin Street and note the agreement of the experts that the solar access impacts are acceptable to all of the units of this building as compared with the original approval (JER at par 5.1) however, they do not agree as to whether the solar access impact is acceptable in relation to the penthouse unit at 15-17 Tonkin Street.
4. The written submission from Mr Daintry at Tab 4 Exhibit 2 includes a 'crude representation' of the additional overshadowing on the southern neighbouring building.
5. During the joint conference between the experts, additional documentation was provided to assist with the assessment of the solar access impacts on the penthouse apartment including sun eye diagrams (annexed to the JER). The experts' agreement is documented in the JER at par 5.3 as follows: "The living area achieves more than 2 hours sun to the eastern face during the morning from the lounge window as well as the large skylight to the living area void. This in itself meets the ADG requirements; From 1 pm to 3 pm the skylight to upper level bedroom provides light through to the living area below (bedroom is a glazed mezzanine); In addition to skylight, at 1 pm, the west facing kitchen window obtains direct sun. The living area only fails to obtain sun at this time because of the deep overhang awning that looks like an addition perhaps after original construction; By 2 pm, the western face of the living area achieves direct sunlight and the part of the façade that enjoys this enlarges through the afternoon to 3 pm. Accordingly, even ignoring additional benefits of the west facing skylight, the penthouse apartment achieves more than 3 hours direct sunlight to living areas (and vastly more to outdoor private open space (which in fact enjoys some sun all day at mid-winter). That apartment will accordingly, continue to comply with the ADG requirements and in fact well exceed the minimum solar required."
6. I have also considered that the Architectural plans, Exhibit D include the following: 1. Proposed overshadowing at summer solstice (DA06.03F) and approved overshadowing at summer solstice DA06.29B 2. Proposed overshadowing at equinox (DA06.04F) and approved overshadowing at equinox DA06.30B 3. Proposed overshadowing at winter solstice 9-11am (DA06.05F), 12 & 1pm (DA06.33A), 2 & 1 pm (DA06.34A) and approved overshadowing at winter solstice DA06.31B
7. The Respondent and Mr Kenny rely on objective (c) of cl 4.3 of the SSLEP to minimise the impacts of new buildings on adjoining or nearby properties from loss of views, loss of privacy, overshadowing or visual intrusion. The Respondent submits that although the experts agreed that the amount of solar access available to the penthouse of 15-17 Tonkin Street complies with the minimum requirements of the Apartment Design Guide (ADG), compliance with those minimum standards does not equate to a satisfaction of the objective in cl 4.3 of the SSLEP to minimise overshadowing, particularly where the element of the proposed building which would create the shadow greatly exceeds the 25 m height control.
8. In considering this issue I have had particular regard to the submission made by the owners of the penthouse at 15-17 Tonkin Street (Exhibit 3 folio 31) and to the submission by Mr Daintry for the owners of SP 66434 (Exhibit 3 Tab 4) about the extent of the adverse impacts of the additional shadowing to the penthouse.
9. In closing submissions, the Respondent submits that since 2015, when the SSLEP 2015 introduced the new planning controls including a maximum building height of 25m, "anybody should have been aware that the building next door could have been built to a height limit of 25 metres, so to the extent that impacts arise as a result of compliance with that height limit, they are expected consequences. But the consequences of a building that exceed the height limit are not and so their concerns about shadowing throughout the year and the bulk and scale are understandable and legitimate." (Transcript, page 116)
10. On balance, I accept the Respondent's submission. I accept that the penthouse would continue to receive the solar access as required by the ADG however that is not the sole consideration. The combination of the proposed additional building height breach and the resulting increased overshadowing as described goes beyond complying with the objective to minimise overshadowing impacts (cl 4.3(1)(c) of the SSLEP) which will result solely from the Roof Modification. For these reasons I conclude that the solar access impacts of the Roof Modification on the penthouse apartment at 15-17 Tonkin Street are unacceptable.

Jurisdictional prerequisite of matters in s 4.55(3) of the EPA Act

1. The consent authority, in this case the Court, is required to take into consideration two things, such matters referred to in s 4.15(1) of the EPA Act as are of relevance to the development of the subject application and, secondly, that the consent authority also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

Consideration of relevant matters under s 4.15(1) EPA Act (s 4.55(3) EPA Act)

1. The Respondent submits in writing that the matters in s 4.15(1) which are of relevance to the development the subject of this application include State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65) and the ADG, the SSLEP (particularly cl 4.3 Height of Buildings and the objectives of the B3 zone), the SSDCP (particularly Part 19 Cronulla Commercial Core), the likely impacts of the development and the suitability of the Site for the development. The Respondent submits that the Proposed Modification will result in a development which is not envisaged or encouraged by the SSLEP controls.
2. Mr Kenny at par 1.23 of the JER expresses his opinion that the Proposed Modification is "well in excess of the intended height and scale resulting in inconsistent and disorderly outcomes."
3. I have addressed the relevant matters in s 4.15(1) in the merit assessment contentions above.
4. Precedent was not contended by the Respondent however the Respondent made a submission that if approved, the Proposed Modification would create a precedent for other significant breaches of the height of building control. Just as the applicant has sought to rely on a variation to that standard for the approved development at 25-29 Tonkin Street, other applicants for development would seek similar concessions relying on any variation which might be approved on this site. It should be noted that the exceedance of the height control for 25-29 Tonkin Street was relatively minor, was limited to the central part of the building and related to a plant and equipment area. As this was not contended in the proceedings, I give this submission little or no weight on the basis that each development application will be assessed in due course on its own merits.

What were the reasons for approval of the original development consent? (s 4.55(3) EPA Act)

1. Finally, I am required to consider the reasons given by the consent authority for the grant of consent which are included in Exhibit 2, Tab 8 folio 152 as follows: "the relatively minor breach of the height of building control the development was of a form and scale envisaged and encouraged by the LEP standards."
2. On a merit assessment, the experts agree that "the original approval was granted subject to breach of the height limit and therefore height compliance could not be said to have been fundamental to the decision to grant consent (JER at par 1.7).
3. Mr Kenny in the JER at par 1.16 p 8 summarises the relevant reasons of the Sutherland Shire Local Planning Panel from 21 July 2020 as follows: "The height non-compliance was relatively minor and resulted from the slope of the land, and did not give rise to any impacts of significance upon surrounding land. […] There were conditions recommended regarding changes to the design by Council staff and these were reasonable in addressing and reducing impacts upon neighbours, including relating to building bulk, ADG Guidelines and outlook."

Conclusion

1. For the reasons given at [35], I have not formed the positive opinion that the Roof Modification is substantially the same as the original development consent and accordingly I am unable to approve the Roof Modification because it does not satisfy the jurisdictional prerequisite of s 4.55(2) of the EPA Act.
2. I accept the parties' proposed middle ground approach and I have formed a positive opinion that these Proposed Modifications are substantially the same development as the development for which consent was granted.
3. I have considered the reasons for the grant of the original consent as required by s 4.55(3) of the EPA Act above.
4. I have also considered the relevant s 4.15(1) EPA Act matters as required by s 4.55(3) of the EPA Act above.
5. The Roof Modification also fails the merit assessment as contended by the Respondent in that I have concluded, on balance that the impacts of the increased height are unacceptable because the visual impact on the public domain will be significant in the context of the Site being located in the B3 Commercial Core Cronulla (Chapter 15, SSDCP) and because the cl 4.3(1)(c) objective to minimise overshadowing is not achieved in the context of additional increased height beyond the maximum building height development standard.
6. The balance of the Proposed Modification consisting of the internal changes and the reduced setbacks to Levels 4, 5 & 6 are not opposed by the Council and I accept the evidence of the experts that the impacts of these Proposed Modifications are acceptable.
7. For the reasons set out above I agreed that the Court should adopt the middle ground as suggested by the parties which is to approve the internal changes and the reduced setbacks to Levels 4, 5 & 6 which are not opposed by the Council, but not approve any change to the roof terrace. I therefore deliver an interim judgment to require the preparation of further amended plans and draft conditions to reflect that decision.
8. To be clear, this is not an opportunity for the parties to relitigate the conditions as tendered or the plans as tendered rather, it is merely a matter of form to enable final orders where the Court will not approve the expanding and embellishing the roof top terrace associated with apartment 601 and where the Court will approve the following modifications: 1. consolidation and changes to unit layouts on levels 1 and 2 reducing the total number of units to 11 three bedroom units, 2. reconfigure ground level balcony spaces, 3. delete condition requiring levels 4, 5 and 6 (including roof) to be setback from the rear balcony and modification of deferred commencement conditions of consent (the Proposed Modified Development).

Directions

1. It will be necessary that the Parties undertake work to finalise conditions of consent so that final orders can be made to dispose of the appeal by way of a grant of approval to the Proposed Modification as listed above at [80] subject to conditions of consent. To that end, I make the following directions.
2. The Court directs that: 1. the Applicant is to prepare, upload on the NSW Planning Portal and file with the Court further amended plans reflecting the conclusion in this judgment at [73] to [80] by 21 December 2021; 2. Respondent is to file with the Court final, agreed, conditions of consent in the form of Annexure A and Annexure B as per the template on the Court website, reflecting the conclusions of this judgment above at [73] to [80] by no later than midday on 29 December 2021; 3. the matter is listed for mention on 5 January 2021 at 4:15pm; 4. if directions (1) and (2) above are complied with, an order will be made granting development consent in accordance with [80] in this judgment and the mention on 5 January 2021 will be vacated; 5. the Parties are granted liberty to restore on three days' notice.

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: 30 November 2021