Gill v Waverley Council

The site containing unit 54

1. Unit 54 is contained within an existing residential flat building (RFB) of 55 units and occupies the top two levels of the RFB. The unit is located on the north-western side of the RFB, which fronts to MacPherson Street.
2. Unit 54 covers the western portion of level 8 of the RFB, which contains the living quarters, and a pool with balconies, and the western portion of level 9, which is a tiled terrace area surrounded on two sides by approximately 1 m deep planter boxes containing unkempt vegetation. The terrace area on level 9 is accessed by an internal staircase from within the unit, and a (currently) locked common space stairway. The western portion of the terrace area on level 9 is the subject of the MA under appeal.
3. Extending above level 9, in the central portion of the building, is the lift overrun and a telecommunications tower. This area is accessed by a ladder through the common space stairwell at level 9 or by a crane.
4. The existing RFB on the site stands prominently (high) in the streetscape, and is surrounded by lower density/height residential and commercial developments.

Relevant Planning Controls

1. The jurisdictional assessment as explained to the Court for the MA appeal is agreed by the parties to relate to satisfaction of s 4.55(2) of the EPA Act, as follows: 4.55 Modification of consents - generally (cf previous s 96) … (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) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. ….
2. Pursuant to s 4.55(3) of the EPA Act, the requirements of s 4.15(1) are also relevant for the Court's consideration to grant consent to the MA under appeal. The requirements of s 4.15(1) are described below: 4.15 Evaluation (cf previous s 79C) (1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application - (a) the provisions of - (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), (v) (Repealed) that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
3. The plans that support the MA submitted to Council have been stamped with the common seal of the 'owners of strata plan 57072', as relevant to the strata management of the RFB, and which includes unit 54. There is no contention that owners' consent is an issue for the making of application before the Court. The applicant has also tendered in evidence the certificate on title, which describes unit 54 as including living areas and balconies across level 8 and the terrace area on level 9. The Court is satisfied that the applicant owns the area which is the subject of the proposed modification. Further to this, the Council provided evidence that all owners of units within the RFB were notified of the MA under appeal, of which none submitted an objection.
4. The site is located within the R3 Medium Density Residential zone, as described in the Waverley Local Environmental Plan 2012 (WLEP).
5. The parties agree that the proposed modification complies with the relevant numeric development standards of the WLEP, except for height, as described in cl 4.3. The relevant height development standard objectives as agreed by the parties as they relate to the MA are (a) and (b), below: 4.3 Height of buildings (1) The objectives of this clause are as follows - (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, .. (d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space.
6. The Waverley Development Control Plan 2012 (WDCP), specifically Amendment 8 of the WDCP is relevant for the Court's consideration of the MA. The parties draw the Court's attention to the following Parts of the WDCP: 3.1 (scale); 3.2 (height); and 3.5 (design).

Evidence

1. The Court was provided written and oral evidence from the respondent and applicant planning experts, Mr Matthew O'Donnell and Mr Lee Kosnetter, respectively. The joint planning expert report that relates to the MA is tendered as Exhibit 6.

Is the proposed modification 'substantially the same' as originally consented?

1. The planning experts agree that the primary issue that requires consideration of the Court for the MA under appeal relates to whether the proposed modification is considered to be 'substantially the same' as originally approved under DA 324/1995 (the original consent), pursuant to s 4.55(2)(a) of the EPA Act. The other jurisdictional requirements for the Courts consideration, pursuant to s 4.55, as they relate to the MA under appeal, are addressed later in this judgement.
2. The original consent was approved on 27 February 1996 for the conversion, by alterations of the former Bronte Inn, to a mixed-use development with a RFB of 55 residential units, strata subdivision and a retail ground floor. The approved development related to eight(8) residential levels plus two (2) basement levels for parking.
3. Further to this, under a previous version of the EPA Act, Council agreed to modify the original consent on 9 April 1997, for the construction of an internal staircase within unit 54, accessing level 8 to level 9 (terrace area), plus new planter boxes and glass balustrading on level 9.
4. It is accepted by the parties that the previous modification of this consent provided internal access and structures on the terrace (level 9) to facilitate its private use. The parties agree that the requirements for consideration of this modification to the original consent were made under s 102 of the EPA Act, relevant at the time of assessment. The requirements of satisfaction under s 102 are agreed as different to what is relevant for the Courts consideration of the MA under appeal, pursuant to s 4.55 of the EPA Act.
5. It is also accepted that the MA under appeal must be assessed against the original consent, not as modified, pursuant to s 4.55(2)(a) of the EPA.
6. It is well established in relevant caselaw, as the Court was taken to by both the parties, that the assessment of 'substantially the same', pursuant to s 4.55(2)(a) of the EPA Act, has both quantitative and qualitative components.
7. Guidance on the approach for assessment of 'substantially the same' is provided in Moto Projects (No 2) Pty Limited v North Sydney Council(1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto Projects), where at [54] to [56], Justice Bignold explains: "54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)."
8. Further to this, Justice Bignold in Moto Projects at [67] explores The Satellite Group (Ultimo) Pty Ltd v Sydney City Council [1998] NSWLEC 244 (unreported 2 October 1998), whereby he explains that the Court must relevantly consider the element of the change proposed by the modification: "67. In the course of considering whether the statutory requirement of s 96(2)(a) had been satisfied, his Honour said: It is not appropriate, in my opinion, to attempt to confine the consideration of the extent of changes to the context of the whole building, notwithstanding that the consent authority is required to consider the totality of the development as proposed for modification and to take into consideration such of the matters referred to in s 79C (formerly s 90) as are of relevance to that development. The focus may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development."
9. More recently, her Honour Justice Pepper explores in Agricultural Equity Investments Pty Ltd v Westlime Ltd (No 3) [2015] NSWLEC 75 at [173] the principles relevant for the Court in assessing an application to modify a consent. She explains that the power (of the Court) to modify a consent must be directed to the original consent and that the term to modify relies on 'to alter without radical transformation' and which does not specifically relate to 'use'. She reinforces the concept that the comparative assessment for 'substantially the same' does not relate to the physical features alone but requires a qualitative and quantitative appreciation in the 'proper context', including the circumstances in which the original consent was granted.
10. Consistent with the approaches adopted by Judges and Commissioners of the Court in assessing whether a modification is 'substantially the same' as the original consent, in the following paragraphs, I provide both a qualitative and quantitative assessment of the proposed modification as it relates to the original consent.
11. The original consent refers to level 9, as the 'roof level', as shown in plans attached to this consent in Exhibit D. For clarity, I will hereafter refer to the terrace area on the roof, the subject of the modification, as level 9.
12. The proposed modification makes no change to the overall maximum height of the building as approved under the original consent, nor the maximum height of structures (i.e. existing awnings) already approved on level 9. Above the proposed pergolas is an existing concrete awning structure that partially extends across the terrace area from the lift overrun, which serves mainly a decorative effect. I understand, as described to the Court onsite by Mr Kosnetter, that the proposed pergolas will be fixed on the existing structures around the terrace (internal wall, ceiling and planter boxes on level 9), at or just below the level of the existing concrete awning on level 9.
13. The lift overrun also extends well above the height of these existing approved structures on roof, and which forms the highest structure of the RFB. I agree with the experts that there is no additional height proposed by the modification above what is already approved by the original consent.
14. Further to this, it is agreed that the proposed modification does not result in an increase in floor space ratio (FSR) for the RFB on this site. The proposed modification is contained within the existing footprint of the terrace area on level 9, and due to its proposed open nature does not add to FSR.
15. I therefore find that there is no quantitative change to the original consent by the proposed modification. The proposed pergolas are lightweight structures, not enclosed and do not exceed in height dimension beyond the physical structures already approved. The maximum height and FSR for both level 9 and the existing building, are the same as originally approved. The original consent which related to conversion of the existing building appears to have always had structures at their current height, within the same footprint of the terrace area.
16. There is no evidence or argument provided to the Court that access and therefore use was not always available, through the common space (cp) stairway, to level 9. The proposed development does not change access to level 9, as this was approved under a different modification, and access through the common stairway access is theoretically still possible (although the doorway is now locked). Therefore, access to the terrace area for approved use has not changed as a result of the proposed modification.
17. There is also no evidence provided to the Court that level 9, which now forms the terrace area for both units 54 and 55, was not already available for their (personal) use in the original consent. The original consent is silent on use of this level (9) as it did not seek conversion, any further works or a change to use.
18. The proposed (pergola) structures are lightweight, setback from the street, and do not result in a change to access or the use of the unit (54) or existing building, as approved under the original consent. Therefore, qualitatively, the proposed modification does not radically alter the original consent as it relates to level 9 or the building itself.
19. I find in the context of what was originally approved, the proposed development is substantially the same because it is materially and essentially the same as originally approved. Level 9 was always intended to be accessed, evidenced by the existing common stairway, which will not be changed, the original consent is silent on the use of the terrace area, and there is no change in the dimension of physical structures that address bulk and scale, as result of the proposed modification. The circumstances/context in which the original consent was approved, as an RFB, are not changed by the proposed modification,.
20. I am satisfied that pursuant to s 4.55(2)(a) of the EPA Act, the proposed modification is substantially the same as the development for which consent was originally granted (DA324/1995).

Assessment of other relevant jurisdictional requirements to modify the original consent.

1. There is no dispute that concurrence is required for the proposed works or that notification of the MA was not made consistent with the WDCP. Therefore, the parties, and the Court agree that the requirements of s 4.55(2)(b) and (c) of the EPA Act are satisfied.
2. The Court hereafter considers the submissions made to Council during the notification period, pursuant to s 4.55(2)(d) of the EPA Act.
3. In determining the application for modification of the (original) consent, the Court must take into consideration the matters referred to in s 4.15(1) of the EPA Act that are of relevance, pursuant to s 4.55(3).
4. The planning experts agree a key issue that requires consideration of the Court in assessment of the MA under appeal relates to the non-compliance with the height standard and consistency with its relevant objectives in the WLEP and WDCP, as well as compatibility with streetscape and desired, future character with respect to bulk/scale.
5. Clause 4.3 of the WLEP establishes a maximum height of 13m for the (RFB) building on the site, which includes unit 54. The experts agree that the proposed height of the pergolas exceeds this development standard, although does not exceed the maximum height of the existing building (RFB), which is at 34.38m.
6. The experts also agree that the proposed development seeks a maximum height for the pergolas of 28.73m, which is based on a pergola height of 2.75m measured from the tiled area on level 9, equivalent to a 121% departure from the standard.
7. I find that a compliant development is not achievable on the site due to the existing non-compliance of the height standard for the RFB. There are relevant physical reasons, such as the existing breach in height of the building, that would require any development/works on level 9 to necessarily exceed the existing height standard, as explained in the cl 4.6 written request for variation.
8. I accept the applicant's position that there are no adverse amenity impacts to adjoining properties from the proposed pergolas, and in particular the modification does achieve the relevant WDCP controls or objectives as described in section 3.13. The experts acknowledge that there are existing solar impacts to adjoining properties due to the prominence of the existing building. I find that the additional solar shadow cast from the proposed pergolas would not be considered adverse to adjoining properties. The solar shadows as assessed, are limited to a minor increase in the shadow cast across adjoining properties, which will not result in further detrimental impact to these properties.
9. It is agreed by the experts and I accept, that there are no view loss or acoustic impacts, which I consider in the conditions of consent for clarity. There are no other amenity impacts identified by the experts that would result from the proposed modification.
10. There was some discussion between the experts and legal representatives as to how the Court should assess the requirement to 'preserve' environmental amenity, as described in objective (a) of cl 4.3 of the WLEP. I accept that the relevant legislation or regulatory frameworks required by the Court to assess this modification do not provide a definition of 'preserve'. Therefore, a definition of 'preserve' as described in the Merriam-Webster Dictionary (online version), provided below (with emphasis added), is adopted by the Court in its assessment: "1. to keep safe from injury, harm, or destruction: PROTECT 2a: to keep alive, intact, or free from decay b: MAINTAIN 3a: to keep or save from decomposition b: to can, pickle, or similarly prepare for future use 4: to keep up and reserve for personal or special use"
11. Considering this definition, I find that the proposed modification does not cause 'injury, harm or destruction' of the environmental amenity of adjoining properties, and also that the proposed pergolas seek to 'keep up' the intended utility for the terrace area as personal/special use of the residents of the site (unit 54). The minor increase in overshadowing to the rear/roof tops for some adjoining properties for a short period of the day (less than 3 hours) on the winter solstice will not adversely affect the wellbeing (health safety) or enjoyment of these properties.
12. Therefore, I am satisfied that the proposed development 'preserves the environmental amenity' of neighbouring properties and public spaces. The proposed modification is therefore consistent with objective (a) of cl 4.3(1) in the WLEP.
13. The terrace on level 9 is an existing space available for private use of the applicant, which I accept currently has limited liveability/use due to its exposure to the elements. I understand that the proposed pergola structures will not remove all the wind and solar impact that this exposed terrace will be subjected to, however the pergolas will improve the use of this space in a positive way. It is unreasonable to limit the use of this already approved area (terrace) particularly as the modifications proposed promote liveability and do not negatively impact the surrounding locality.
14. I consider that the proposed modification will appear harmonious with the existing building (RFB) and in the streetscape, because it adopts a footprint within the existing terrace, is positioned on the uppermost level (9), and is recessed from lower levels of the RFB, which will reduce its visual presence to the streetscape. I accept the applicant's position that the proposed pergolas, with the addition of proposed landscaping, will effectively soften the hard edge of the existing building and not dominate the existing building, streetscape or appear inconsistent with the desired, future character.
15. It is accepted by the experts that the existing building appears out of character with surrounding properties. However, I find that the addition of the pergolas on the terrace area (level 9) will not further exacerbate any existing incompatibility of the building, and in fact, likely reduce this existing incompatibility. The softening of the lift overrun with the pergola structures, enhanced by proposed landscaping, positively complements and contributes to the physical definition of the street network and public space. I viewed the site from the public space and consider that the proposed structure will contribute to the street network and public spaces surrounding the site. The proposed pergolas will appear in the streetscape positively. The proposed lightweight structures, as positioned on the terrace, do not adversely contribute to bulk and scale of the existing building when viewed from the streetscape.
16. The proposed modification is consistent with the existing building, which by the nature of its existence forms part of the desired, future character of the locality. Whilst I accept that the existing (RFB) building itself does not sit nicely in the streetscape, it does form part of the character of the locality, and the proposed modification is compatible with this and the surrounding character.
17. It has been demonstrated to my satisfaction that the proposed modification preserves environmental amenity, does not add detrimentally to the bulk and scale of the existing building, and is compatible, complementary and contributary to the streetscape.
18. There are no detrimental amenity impacts as a consequence of the proposed modification, including from overshadowing, view loss or acoustic. The existing building is already non-compliant in height with current development standards and the proposed pergolas do not further exacerbate the non-compliance of the building or add unnecessary bulk to the existing building.
19. The proposed modification achieves a design that is characteristic of the existing building, shielding the lift overrun which stands proudly in the streetscape. The proposed pergolas, will not further dominate the streetscape, existing building or the locality, and are not inconsistent with the desired, future character of the local area. The proposed modification is therefore consistent with objective (d) of cl 4.3(1) in the WLEP.
20. I am satisfied that the proposed modification satisfies the relevant height objectives established in cl 4.3(1), in particular (a) and (d) of the WLEP, and therefore the contentions raised by Council as they relate to these objectives are resolved. There is no contention that any other development objectives of the WLEP are not achieved. The relevant (R3) zone objectives are also achieved, which is not in dispute between the parties.
21. In addition, I find that the proposed development complies with the relevant controls of the WDCP, specifically Amendment 8 as it relates to the MA under appeal. The design of the pergolas is consistent with the building height and streetscape character, satisfying the relevant requirements of the WDCP (Amendment 8). Specifically, I am satisfied that the objectives as described in Parts 3.2 and 3.5 of the WDCP are achieved, because there will be no adverse amenity impacts, and the proposed modification responds to the streetscape and desired, future character of the street and local area.
22. Therefore, I am satisfied that the matters of consideration in assessment of the proposed modification, as required in ss 4.15(1)(a)(i), (ii), (b) and (c) of the EPA Act are addressed.
23. The submissions made in objection by the residents following notification of the MA that are tendered in evidence, have been considered in my assessment of the MA under appeal. I accept that the adjoining residents are concerned about further development on an already tall and dominant building in the streetscape. However, the proposed modification itself does not cause adverse impact to adjoining properties and is not inconsistent with the character of the locality, and existing building. The proposed modification therefore satisfies the requirements in s 4.15(1)(d) of the EPA Act.
24. I have considered the evidence before me relevant to s 4.15(1) of the EPA Act, and am satisfied that the proposed modification addresses these requirements. Therefore, ss 4.55(2)(d) and (3) of the EPA Act are addressed to my satisfaction.

Is proposed development in the public interest?

1. The Council contends that due to the exceedance in height, there are potential amenity (solar access) issues, and an incompatibility with streetscape and desired, future character of the local area because of inconsistent bulk and scale. Therefore, the proposed modification is not in the public interest.
2. My assessment is based on the expert evidence tendered, submissions of residents from adjoining properties, and my own site observations to assess the public interest benefit of the proposed development. I am satisfied that I have sufficient detail to assess the requirements of s 4.15(1)(e) of EPA Act.
3. I disagree with Council and am satisfied, consistent with the assessment described above, that the proposed modification is in the public interest. The proposed development therefore satisfies the requirements in s 4.15(1)(e) of the EPA Act.

Conditions of consent relating to DA 324/1995/A

1. The parties have largely agreed to the conditions on which the original consent should be modified.
2. However, two of the (new) conditions are in dispute, which relate to the issue of openness of the pergola structure and noise from the terrace.
3. I will deal with each of the disputed conditions below.
4. For the first issue, which relates to the potential enclosing of the pergola, I accept the Council's version of the condition because it is more explicit and consistent with what the Court has assessed as appropriate based on the requirement to ensure openness. Removing any potential for installing side coverings will ensure the pergolas appear as lightweight structures and minimise any perceived bulkiness. The proposed landscaping, as described to the Court, will have the effect to filter solar access through the sides of the pergola, and therefore enclosure is not essential to reduce solar access and improve liveability.
5. On the second issue, as it relates to potential noise from the terrace, specifically the fixing of speakers on level 9, I also agree with the Council's version of the condition, because it will limit the potential for any adverse acoustic impacts, which was raised in concern by surrounding residents. As designed, persons and non-fixed speakers on the terrace will stand back from the edge of the terrace due to the planter boxes, with the noise contained (muffled) within the pergola structures and landscaping. The fixing of speakers to the pergolas could have the potential to elevate and project noise over the planter boxes beyond the boundary of the terrace.

Conclusion

1. The proposed modification has been assessed by the Court, based on the evidence provided, including the (amended) supporting plans, documents, expert reports, observations made at the site visit and resident submissions in the hearing of the appeal.
2. I have considered the relevant sections of the EPA Act in my assessment of this appeal. I am satisfied that the relevant matters described in ss 4.15 and 4.55 of the EPA Act are addressed to modify the original consent, DA 324/1995 as proposed.
3. The appeal that relates to the proposed modification, DA 324/1995/A, is approved, subject to conditions in Annexure A. The proposed modification, as it is intended in this consent, is assessed that it will not result in a contravention of the EPA Act, particularly as the proposed modification is considered by the Court to be substantially the same as originally approved and satisfies the jurisdictional and merit assessment of relevant factors to modify the original consent.

Orders

1. The orders of the Court are as follows: 1. The appeal is upheld. 2. Modification Application DA324/1995/A seeking installation of two aluminium louvered pergolas with associated landscaping in existing planter boxes on a terrace roof on level 9, on Lot 54 SP 57072, also known as 54/107 MacPherson Street, Bronte is approved subject to conditions as modified in Annexure A. 3. The exhibits are returned, except 3, 6, C, D and G, which are retained.

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: 11 November 2020