FPG No. 2 Pty Ltd v Randwick City Council

Land and Environment Court (NSW)|2018-04-06

Judgment

COMMISSIONER: This is an appeal lodged under former section 97AA (now section 8.9) of the Environmental Planning and Assessment Act 1979 (the Act) against the refusal of a modification application by Randwick City Council (the Council) to an approved development. The modification comprises the addition of a private roof terrace on a residential flat building (RFB) at 352 Clovelly Road, Clovelly (the site).
A threshold issue associated with the modification application was whether the proposed modification comprised 'substantially the same development' to which consent can be granted under section 4.55(2) of the Act. If so, whether the modification ought to be allowed on its merits having regard to the impacts of the modification proposed.

The site and surrounds

The recently constructed RFB is situated on an elevated 424.5m² site on the southern side of Clovelly Road opposite the Clovelly Hotel which is a listed local heritage item under the Randwick Local Environmental Plan 2011 (the LEP).
In addition to the hotel, the surrounding area is characterised by a mix of neighbourhood shops, RFBs and single dwellings.
To the west of the site is a 1-2 storey building containing shop premises with residential above and single storey to the rear. At the time of the hearing, it was the subject of an application for a 4 storey RFB yet to be assessed by the Council. To the east is a part 2 part 3 storey RFB.
To the rear of the site, fronting Melrose Parade, are several multi-storey RFBs elevated above the site by approximately 2.3m. A number of upper level apartments in these RFBs have views across the site to the ocean to the east and were the source of objections to the original consent and to the proposed modification application. Submissions raised the fact that the approved RFB already removed much of the ocean view from these apartments and the roof terrace would further reduce what views were left.

Objectors' concerns and site view

At the commencement of the hearing, the Court viewed the site and surrounds in the presence of the parties and the expert planners: Mr Betros for the applicant and Mr Mead for the Council.
The Court also heard from three residents of apartments in Melrose Parade. All indicated that the site was located in an area where noise carried.
One objector spoke on behalf of himself and a resident of another apartment at 30-32 Melrose Parade. His primary concern was the close proximity of the proposed roof terrace to the apartments in his building and the impacts on their amenity.
Two objectors reside at the apartments at 26-28 Melrose Parade (which I refer to as 26 Melrose Parade). The resident of Unit 4 was concerned about the view impacts having already lost substantial views to the ocean from his unit, and his balcony in particular, as a result of the development. He claimed the roof terrace would take what little view he had left. He and the resident of 3/26 Melrose Parade shared those concerns and were also concerned about noise impacts and loss of privacy.
The Court viewed the development from the balcony of 4/26 Melrose Parade and also distant views of spaces claimed by Mr Betros to be examples of rooftop terraces although the Council argued most were upper level balconies.

The statutory context

The site is zoned R3 Medium Density Residential under the LEP and the proposed development is permissible with consent in that zone.
The development, including as proposed to be modified, complies with the maximum LEP permissible height of 12m and floor space ratio (FSR) of 0.9:1.
The objectives of the height standard at clause 4.3 of the LEP are: 1. to ensure that the size and scale of development is compatible with the desired future character of the locality, 2. to ensure that development is compatible with the scale and character of contributory buildings in a conservation area or near a heritage item, 3. to ensure that development does not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk, loss of privacy, overshadowing and views.
Development is also subject to the provisions of the Randwick Comprehensive Development Control Plan 2013 (the DCP). At part C2 Medium Density Residential, section 4.2 Roof Design, there is an objective to ensure that any recreational use of the roof integrates with the built form and does not cause unreasonable privacy and noise impacts on the surrounding residences.
Control vii) of section 4.2 states: vii) Terraces, decks or trafficable outdoor spaces on the roof may be considered only if: - There are no direct sightlines to the habitable room windows and private and communal open space of the adjoining residences. - The size and location of terrace or deck (sic) will not result in unreasonable noise impacts on the adjoining residences. - Any stairway and associated roof do not detract from the architectural character of the building, and are positioned to minimise direct and oblique views from the street. - Any shading devices, privacy screens and planters do not adversely increase the visual bulk of the building.
The development is also subject to the provisions of State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development and of the associated Apartment Design Guide (ADG).
The modification application was lodged under the provisions of then section 96(2), now section 4.55(2), of the Act as follows: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates 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), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) …

Whether the development is substantially the same

The Council contended that the application should be refused as it was not substantially the same as the development to which consent was originally granted. In particular, that approval of the original development was subject to the deletion of the roof terrace and associated structures due to the additional massing associated with the terrace and its adverse impacts. That deletion was required by condition 2a. Conditions 2b and 2c also required a reduction in the overall RFB height and that plant and equipment be in the basement.
The modification application seeks a roof terrace generally in the manner that was previously proposed before being deleted from the approved development. The Council maintained the modification relates to substantive and focal points of the previous application before it was amended to address Council concerns.
The applicant referenced the Court's decision in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 where Pepper J at [173] usefully summarises the legal principles governing the power to modify consents (under then s96(2)(a) of the Act) as follows: 173. The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated as follows: 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); the modification power is beneficial and facultative (Michael Standley at 440); 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]); 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); 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]); 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]); 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]); 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); 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 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]).
The Council also referenced Pozzobin v City of Canada Bay Council [2014] NSWLEC 1143 where then Dixon C was not satisfied, after a qualitative and quantitative comparison of the modification and the original consent, that the development would be substantially the same if certain conditions of consent were removed.
Commissioner Dixon had regard to the circumstances in which the original consent was granted as evidenced from a planning assessment report prepared by a Council officer. The approved development encompassed the amendments required by the conditions which she determined were part of the design and ultimately the consent. She concluded at [48] that conditions could not be unnecessary and excessive in circumstances where they were imposed after a merit assessment to make the development acceptable on the site. She was also not satisfied that removing the conditions sought by the modification would not result in a radical transformation of the development.
Reference was also made by the parties to Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8) where Stein J states in essence that what (now) section 4.55(2) requires is a comparison of the modification against the whole of the development. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the approved development.
In Moto Projects (No 2) Pty Ltd V North Sydney Council [1999] NSWLEC 280 Bignold J considered that the applicant placed undue reliance upon the modification representing 'only a fraction of the overall development' rather than whether it qualitatively rather than simply quantitavely changed the development.
Mr Staunton, counsel for the applicant, also referenced The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (unreported 2 October 1998), where Talbot J found the modification was not for substantially the same development as the development would undergo radical change in terms of its use and substantial change in the type of occupiers and the building's external presentation.
Mr Staunton submitted that the development would not undergo radical transformation as a result of the modification adding only a roof terrace. He also referenced Coogee Developments Pty Ltd v Randwick City Council [2017] NSWLEC 1022 where Brown C determined a modification would result in substantially the same development despite the modification reinstating a substantive unacceptable element of the original application which had been removed in order to gain consent.
Mr Staunton similarly submitted that reinstating an element required to be removed in order to gain consent did not mean that the reinstated element would result in a different development. Further, that the roof terrace had never been considered by the Council, per se, as that component of the development had been removed before it was considered and approved by the Council.
Mr Betros also argued that the proposal did not alter the nature or essence of the approved development as it remains 3 units in a 3 storey RFB well below the maximum permissible height limit. There is no change to the building footprint, setbacks or envelope with the modification limited to an internal stairwell from the third level balcony to a small roof terrace.
He also argued that the terrace would not be intrusive or prominent from any public or private vantage points due to its recessed location and with structures limited to transparent glazed balustrading. It would therefore not generate any significant amenity impacts beyond that of the approved development.
Having reviewed the report by the Council's City Planning Director on the original application in 2015 (the officer's report, Exhibit 5), Mr Betros was also of the opinion that the roof terrace was not a substantive or focal point of the assessment and its deletion from the original application was not determinative in relation to the view assessment under Tenacity Consulting v Warringah [2004] NSWLEC 140.
The officer's report states (Exhibit 5, p15) that the views from Units 3 and 4, 26 Melrose Parade were more expansive views of water but remained distant, of only moderate quality and were across a side boundary which makes them difficult to protect. Further, the subject site sits on a relatively similar level to those properties west of the site between the affected units and the water views. The development of these properties would likely result in a similar view loss to the affected units meaning that residents can't have a reasonable expectation of maintaining their ocean views.
In contrast, Mr Mead argued that the modification sought would not result in a development substantially the same as that originally approved. In quantitative terms, it results in Unit 3 having two private open spaces rather than one. The roof terrace also incorporates balustrading which increases the effective height of this part of the building by 1m. In the context of the original approval, where building height, bulk, aural and visual privacy and view impacts were central, including the terrace changed the essence of the proposal.
Mr Mead also did not agree that the proposal makes no change to the building envelope as it increased the height of the building and its usable area. Nor did he agree that it was a small roof terrace at 32.5m² which was just under the size of the approved balcony of Unit 3 at 38m². The size was large when considered in light of the minimum private open space requirement under the DCP for apartments of 8m².
Mr Mead also submitted that, in qualitative terms, the essence of the application changed as the proposed balustrading would cause significant additional view loss compared with the original approval, which is unacceptable. Any screening for privacy would further increase view loss. He referenced the recent amendments to the Act at s 4.55(3) where the consent authority must take into consideration the reasons given for the grant of the consent sought to be modified. He argued these changes to the Act appeared to stem from a line of case law that established the circumstances in which an original decision was made were of relevance to a modification application. Deletion of the roof terrace was central to the grant of the original consent and was a specific condition of that consent.
The officer's report on the original development in referencing the roof terrace states (Exhibit 5, p 10): "This element is deleted from the application due to its proximity to neighbouring properties and will afford an outlook across to neighbouring properties habitable room windows and is also capable of being used for entertaining purposes resulting in potentially adverse acoustic (noise) nuisance. It is considered that the size and location of the roof terrace relative to the neighbouring properties cannot be improved by requiring additional screening as it would in turn may (sic) make it more noticeable from street level as well is further exceed the external wall height controls compromising views from the properties in the area."
In dealing with neighbour objections regarding privacy and noise impacts, the report responds by stating that the applicant has deleted the roof terrace and a condition is included to that effect.
On view loss, the report concludes that the extent of view impacts is acceptable, as the officer took into account that the development was subject to amendments including deletion of the roof terrace and associated balustrades. In particular, in relation to Units 3 and 4 at 26 Melrose Parade, a standing view would still be retained from these balconies with the amendments. Mr Mead argued these views would be significantly diminished by the modification and that the conditions were imposed to avoid this.
View loss was also raised by several objectors in relation to the original application. Mr Mead argued that the conditions on the original consent should be seen to directly respond to those objections. He also noted the roof terrace now applied for as a modification was almost identical in shape and location to that required to be deleted by condition 2a. The Council accepted a height non-compliance in the approved development on the basis that the RFB was lowered as per condition 2b (done) and the roof terrace removed (condition 2a). The proposal sought to reinstate an element, the deletion of which was central to the original approval.
Ms Reid, counsel for the Council, also submitted that, even knowing the views were only across a side boundary and difficult to protect and the vulnerability of units at 26 Melrose Parade to have their views protected, the Council still required the lowering of the RFB and the deletion of the roof terrace before accepting that the impacts of the RFB were acceptable because some views were maintained for these units. Impacting these views through the modification proposed changed the essence of the approved development, as protection of these views was a fundamental pre-requisite for approval.
She further submitted that the applicant's argument that they are well below the height was only because they had used all their FSR at lower levels so no floor space could be accommodated higher and also because they would not have received an approval without lowering the height notwithstanding the LEP height control. Further, the rooftop terrace was an additional use not in the existing RFB.
In dealing with the issue of whether the modification results in substantially the same development, the parties addressed a number of merit considerations related to both the original and the proposed application. Prior to considering whether or not the modification application is for a development which is substantially the same as the approved development, I consider it appropriate to therefore first consider the merit issues raised by the Council in opposition to the modification in order to consider the modification application in context.

Merit considerations

The merit considerations relate to the impacts on neighbouring properties. The Council argued that the proposed roof terrace would not protect the amenity of adjoining residents and would therefore not satisfy the objectives and controls for roof design in the DCP. Nor would it meet the view sharing principles in Tenacity.
The Council referenced the Court's planning principles established in Davies v Penrith City Council [2013] NSWLEC 1141 in particular the reasonableness of the proposal causing the impacts. The proposed roof terrace was solely for the use of occupants of one apartment who already had the benefit of ocean views and outdoor amenity from the approved balcony off their living room.

Privacy and overlooking

The Council contended that there would be direct sightlines to the habitable bedroom and living room windows at 34 Melrose Parade as well as potential for direct sightlines across to future development of neighbouring properties to the east at 344-350 Clovelly Road and 354 Clovelly Road. The LEP allows for a 3-4 storey built form and, if these properties were developed consistently with these controls, the roof terrace would allow direct sightlines to habitable room windows and private open space of adjoining residences. Physical measures to ameliorate any direct sightlines, including privacy screens, would add unnecessary bulk particularly along the western elevation and result in additional potential view loss from neighbouring properties.
In this regard, the applicant originally proposed privacy screens to the terrace but subsequently deleted them arguing the distance to adjoining balconies being viewed from the proposed terrace removed any privacy concerns.
Mr Betros considered the context was of higher density living and the proposal should be considered in light of the "substantive mutual visual privacy impacts associated with the array of unscreened balconies and terraces in close proximity which seek to take advantage of coastal views to the east" (Exhibit 3, paragraph 20).
He argued that there would be no opportunity for direct sightlines to or from adjoining residences either side. The only views from the roof terrace would be to the roof of both these properties. He noted that the property to the east, 354 Clovelly Road, had been redeveloped to its permissible FSR of 0.9:1 and considered that the development potential of 348-350 Clovelly Road to the west would not be compromised given the recessed and limited size of the roof terrace.
Mr Betros also argued that the terrace was situated towards the northern end of the RFB avoiding any unreasonable overlooking to the bedroom of 34 Melrose Parade which is over 25m from the southern edge of the terrace.
He also argued that the likely infrequent use of the proposed roof terrace, which had no weather protection, would further minimise any adverse or unreasonable privacy impacts.
Mr Mead disagreed with Mr Betros that the proposal would not impact the future redevelopment potential of 348-350 Clovelly Road with the terrace, and the access stairs being, at their closest point, only 2.5m from the common boundary. This separation would result in opportunity for direct viewing into that site as well as aural impacts and would unreasonably burden redevelopment designs which would need to avoid window openings along the common boundary.
Mr Mead also considered that the proposal would, without screening, allow direct sightlines to 30-32 and 26-28 Melrose Parade contrary to the DCP although he accepted the distance from the proposed terrace to these properties would reduce those impacts, being well in excess of that required under the ADG for reasonable separation for privacy purposes. However, the DCP contains specific controls for roof terraces precluding them where they resulted in direct sightlines to habitable rooms or private open spaces of adjoining residences. These controls had to be considered in addition to ADG requirements, particularly given the number of people that could be accommodated on the terrace relative to the private open spaces which ADG controls are concerned with.
Mr Staunton queried whether residences at 26-28 and 30-32 Melrose Parade were adjoining the site, as required by the overlooking reference in s 4.2 of the DCP.
Mr Betros also argued that roof terraces were contemplated by the DCP and the proposal was therefore consistent with the nature of development anticipated by the LEP and DCP controls being also compliant with the LEP height and FSR provisions.

Noise and visual impacts

Mr Mead considered the size of the roof terrace would result in adverse noise impacts not easily managed. The balustrades would also project greater visual bulk and scale to the development with associated adverse visual impacts when viewed from neighbouring properties and the surrounding area. Any shading devices, privacy screens or planters would result in additional visual bulk.
However, Mr Staunton submitted that, in terms of bulk and scale, the development would still meet the height and FSR standards of the LEP and therefore the Council could not impose more onerous requirements from the DCP than were required by the LEP, where compliance with the LEP standards was achieved: s 4.55(3)(A) of the Act.
Mr Betros argued that the lightweight nature of the balustrading and the limited extent of the terrace resulted in a reasonable built form being, remaining less than that anticipated by the controls. He also contended that the isolated nature of the roof terrace from surrounding properties, and its limited size, would avoid any unreasonable acoustic impacts.
Mr Betros referenced plans the subject of a current application for the site two properties to the west which proposed an RFB including a roof terrace of a similar extent to the roof terrace proposed. He also argued there were other roof terraces in the vicinity as well as numerous elevated/unroofed balconies. Therefore the proposed roof terrace was not uncharacteristic of the locality.
Mr Mead accepted that there were some elevated balconies and roof terraces in the area but noted that the proposed terrace did not integrate with the roof form but rather was an 'add-on' in design terms. However, he accepted the visual impact was limited to its appearance from surrounding properties rather than the public domain.
Whilst compliant in overall height with the LEP height control, Mr Mead argued that the terrace would not meet the LEP height objective of ensuring that development did not adversely impact on the amenity of adjoining and neighbouring land in terms of visual bulk and loss of privacy and views. He also noted that the development was at the maximum permissible FSR and, whilst a roof terrace is not included in FSR, it would still add to bulk and scale.
Mr Staunton submitted that, as the height met the maximum height standard under the LEP, the LEP height objectives must also be met. It was only when the height was sought to be breached that the LEP height objectives came into play. Further, having regard to the planning controls of the surrounding area, development up to 12m is what people can reasonably expect.
Mr Staunton also submitted that the DCP controls anticipate roof terraces in the zone which are not included as part of the FSR calculation and so can be additional to the allowable FSR whilst still achieving FSR compliance, as is proposed in the application.
No expert acoustic evidence was available to the Court. However, the Council contended that the roof terrace would be in close proximity to neighbouring properties without any noise buffers and would therefore likely result in unreasonable noise impacts on adjoining residences. Mr Mead noted that the terrace was a significant size at 32.5m², being four times the size of private open space required for an apartment.
The applicant indicated that the roof terrace provided amenity not provided by its balcony off the living area at the level below and would enable views not available to that level. On this basis, Mr Mead assumed it would be frequently used and was capable of accommodating large numbers of people whereas the approved Unit 3 balcony faced the street and was shielded by the building itself from properties to the rear. In contrast the roof terrace would be open, other than balustrading, with the potential to cause adverse acoustic impacts on surrounding properties which would be difficult to manage.
Mr Betros argued that there was a hotel opposite with residents already subject to noise from it. However, Mr Mead contended that strict management and licensing requirements could deal with the hotel's noise impacts, not an option for this proposal. He also noted objectors' advice that noise carried in the area.

Impact on views

The View Analysis report (Exhibit B) examined the view loss from Units 3 and 4, 26 Melrose Parade and Units 5 and 9, 30-32 Melville Parade. However, Mr Mead argued that other units were affected to a lesser extent, although there was no evidence of these impacts. In his opinion, view impacts of the approved RFB on several properties had been minimised by the conditions of consent requiring deletion of the roof terrace and lowering of the building. The view impacts on Units 3 and 4, 26 Melrose Parade arising from the proposed roof terrace would be unacceptable, being views lost from the primary and only private open spaces to Units 3 and 4.
In this regard, Mr Betros argued that views of the ocean to the east across the side boundary of the site would remain available. He reiterated the height of the balustrading would be below the LEP height limit and the overall RFB at 3 storeys was less than the 3-4 storey built form anticipated by the controls. In such circumstances he considered the view impacts to not be unreasonable. Furthermore, the siting of the terrace retained views across the southern side of the RFB when viewed from the properties at 26 Melrose Parade.
It was Mr Mead's evidence that the approved RFB retains horizon views from the balcony off 3/26 Melrose Parade, broken by the lift and stair over-run. These views are from both a sitting and standing position and are also available to a bedroom. The proposed terrace would interrupt the horizon view with a new element more than twice the width of the lift and stairs, and higher.
In his opinion, the additional view loss would severely compromise the 'left-hand' side of the view north of the lift/stair with the overall impact moderate to severe. Mr Mead argued this impact should also be put in the context of the loss arising from the approved development which removed some views of the land/water interface to the north east but largely retained the horizon. The proposal would now interfere with this. This was inconsistent with the concept of view sharing in Tenacity in that it results in an inequitable distribution of views between neighbouring properties.
He argued the view loss in relation to 4/26 Melrose Parade was similar. From the balcony off the living area, the roof terrace would interrupt the horizon view leaving a significantly reduced amount of water view with some view loss also from the living room, not analysed in the view analysis undertaken. Further, although the proposal will incorporate balustrading, this would not remove the impact as it was typically not accepted that views can be retained through built structures even if glazed. The terrace is likely to accommodate plants, furniture, a barbecue, shade structures and the like, and there would be sun glare through the glass, which will distort views.
The Council argued that the view impacts were unreasonable under Davies. The roof terrace is proposed to be private to serve the occupants of only one apartment in the RFB who already have a reasonably sized balcony off their living area, well in excess of the minimum required, and which provides a high level of amenity, with not only a reasonable area for private outdoor activities but with extensive ocean views.
Mr Staunton submitted that units in 26 Melrose Parade were vulnerable to view loss because of the controls which permit redevelopment between them and their views irrespective of the rooftop terrace proposed in this application. Any such redevelopment would likely also include rooftop terraces at a similar height.
However, Mr Mead argued that would depend on the design of the developments which would not necessarily be to the maximum permissible controls and require appropriate setbacks. Further, that a similar assessment would be undertaken by the Council in terms of their impacts including on views.
In response to the view impact concerns, the applicant proposed conditions requiring that there be no structures or furniture on the roof terrace that exceeded the height of the balustrade and that the balustrade be constructed of 92% non-reflective glass kept clean and free of salt with regular cleaning. Further, that a restriction be registered on the title of Unit 3 notifying of the existence of the conditions and requiring compliance with them. Mr Mead was dubious about the ability to keep the glass clean and therefore transparent in a coastal location.
In closing, Ms Reid submitted that, on its merits, I could not conclude that the proposed roof terrace was a reasonable modification to the development in the circumstances. It was not necessary given the size of the balcony below which already has extensive ocean views and would reduce much of what is left of the ocean views of Units 3 and 4, 26 Melrose Parade.

Findings

On the evidence, including the Council officer's 2015 report on the original application and the consent itself, the original development was approved specifically on the basis that it had no roof terrace.
Whilst the applicant argued that deletion of the roof terrace was not an important aspect of the original approval nor even subject to consideration by the Council in granting that approval, I disagree. It was an element proposed but then removed by the applicant as the Council would not have granted the approval were it retained, reinforced by the confirmatory consent condition 2a imposed by the Council.
The officer's report recommending approval to the RFB indicated the development was only acceptable because, inter alia, of the assessed impact of the amended RFB without the roof terrace on the views, privacy and amenity of neighbours. It was also an aspect of the original proposal that was advertised to neighbours and objected to. Removing it from the development therefore made a material difference to the nature of the development and to those objectors.
These were the circumstances in which the development consent was granted. Removing the roof terrace and lowering the building height were the two key changes required to the development by the conditions of consent in order for the development to proceed (albeit the applicant had already removed the roof terrace).
Amendments required to a development in order to gain approval are dealt with in the decision: Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241 where at [56], Morris C had regard to changes required by a consent condition in order to make a development acceptable to the Council. The change required by the Council in that instance to lower a building height was, in her view, an essential element of the Council's determination and approval. This is similar to the finding of Dixon C in Pozzobin.
Similarly, I find condition 2 of the original consent required two changes which were essential elements of the approved development. Both were in response to minimising impacts to neighbours and both related in part to the height. One required the building to be lowered, the other the roof terrace's removal.
In Vacik, Stein J found that it is not sufficient that, simply because the nature of the development (in this case an RFB) if amended would be the same use, it would therefore be substantially the same development. It is also necessary to consider whether the proposed modified development would be essentially the same or materially have the same essence as that originally approved.
In Moto Projects, Bignold J found that the comparative task does not merely involve a comparison of the physical features or components of the approved development. Rather, comparison involves an appreciation of the qualitative as well as quantitative aspects of the development being compared in the proper context including the circumstances in which the approval was granted.
From a quantitative perspective, I accept that what is approved remains an RFB and that adding a roof terrace would not result in a radical transformation of the development which is one of the considerations applied to determine if the modification proposed would result in substantially the same development.
However, the test in s 4.55(2)(a) goes beyond whether a development requires a radical transformation in order not to be substantially the same as the approved development.
From a qualitative point of view, the roof terrace will introduce a number of relevant features that are not part of the approved development. This includes additional structures above the height that is currently approved, and enabling and introducing access to (and use of) a rooftop by occupants of the apartment that it is attached to. This use, with associated structures and furnishings, will impact views and potentially generate noise and overlooking of adjoining properties which are not aspects of the approved development.
I was also not persuaded on the evidence or from the site view that roof terraces were a feature of the area albeit some exist. The DCP states that roof terraces may be considered but only subject to meeting certain requirements including having no specified adverse impacts on neighbours.
As Mr Betros stated, the proposed roof terrace is in a somewhat isolated location in the context of adjacent development. Given this, it would be relatively prominent not being immediately adjoined by RFBs to the same height. It would be overlooked by, and have views to, higher development to the rear fronting Melrose Parade. This would result in a degree of mutual overlooking from and to any terrace proposed on the roof.
Having a roof terrace also results in a material difference to an RFB which contains only 3 dwellings, providing substantial additional private open space to one of those dwellings and effectively adding another level to the development, albeit its use is limited to a terrace. Aside from any consequent amenity impacts, which are merit considerations, it materially changes the form and nature of the development as approved.
In the context of the site and the circumstances of the original approval, from a qualitative point of view, I have therefore concluded that the development is not substantially the same as, being materially different to, that which has been approved. I therefore have no power to consent to the application and accordingly, the appeal is required to be dismissed.
If however, I am wrong in the conclusion that I have reached on the jurisdictional test arising under s 4.55(2)(a), I will now proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional finding, the parties could consider the outcome of that merit assessment.
Having regard to the expert evidence and viewing the proposed location of the roof terrace from the balcony of the objector at 4/26 Melrose Parade, I consider that the proposed terrace would have unacceptable view impacts on that objector's property and also on 3/26 Melrose Parade.
Views to the ocean as a result of the approved development from these properties have already been substantially diminished. The remaining views of the water and horizon over the RFB will be affected by the roof terrace.
Whilst glass balustrading of the terrace was proposed, the roof terrace will be a structure which has the potential to obscure views and the use of the balcony will inevitably mean people, if not furniture and pot plants, irrespective of their height, will be on the terrace further obstructing views. I also do not consider it to be a reasonable response to impose conditions to try and retain a degree of viewing through a balustrade by controlling the furnishings and use of a private terrace and the cleaning of its balustrade.
I accept the proposed development, as amended, would still comply with the maximum height permissible under the LEP and with the FSR. It may also be the case that properties in the area are redeveloped and remove the remaining ocean views from apartments at 26 Melrose Parade. However, if the Council undertakes the same view impact assessment as was undertaken for the subject application, then it is also possible views will be retained. In any event, they are not further eroded by this modification application.
In contrast, there would be expansive views from the proposed roof terrace in a number of directions including into neighbouring properties moreso than could be expected from balconies with confined sightlines from individual apartments. These views would include to the balconies and windows of neighbouring RFBs and over properties not yet redeveloped.
The applicant originally proposed privacy screens to the terrace but subsequently removed them given the Council's concerns with view loss and bulk and scale impacts albeit Mr Staunton argued they weren't required to preserve privacy. Instead the distance to the properties and balconies being overlooked or viewed from the proposed terrace was relied upon to satisfy privacy concerns.
The evidence of Mr Betros was contradictory on the potential for privacy and noise impacts from the proposed roof terrace. On the one hand he said the terrace would be infrequently used but on the other stated that it provided amenity to the unit below because of the views from the terrace not available at the level below.
Irrespective, it may well be the case that a number of the potential impacts contended by the Council could reasonably be expected in an area undergoing redevelopment and already containing higher density development. This includes a degree of overlooking of private open spaces and noise impacts. These impacts may of themselves be insufficient to warrant refusal of the modification application on merit.
However, I see no basis for facilitating any further view loss to that which has already occurred for the occupants of 3/26 and 4/26 Melrose Parade whose balconies are the only private open space available and from where ocean views are retained, those views having being substantially reduced as a result of the approved development.
My finding is particularly having regard to the 'reasonableness' consideration under Davies. The roof terrace is proposed to be private to serve the occupants of only one apartment in the RFB who already have a reasonably large balcony off their living area which will provide not only an area for private outdoor activities but also extensive ocean views.
For these reasons, on its merits, the modification application ought to be refused.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. Modification Application 674/2014/C for a private roof terrace accessed by new stairs proposed on a residential flat building at 352 Clovelly Road, Clovelly is refused. 3. The exhibits are returned except Exhibits A and 1.

Jenny Smithson Commissioner of the Court 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: 20 June 2018

(2008) 166 LGERA 342

(1999) 106 LGERA 298

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