Karellas & Anor v Mosman Council

Judgment

1. Mr and Mrs Karellas own property known as No 9 Burran Avenue, Mosman and hold a development consent, (8.2014.223.1) which authorises alterations and additions to a dwelling house on that land comprising ground and first floor additions, swimming pool and pool house and landscaping works. That consent was granted on 17 June 2015.
2. Despite the wording of the approved development, condition 2 of the consent requires the deletion from all approved drawings, the pool house, swimming pool, tank room pool room, associated stairs and other structures. Condition 3 requires amendment to the roof of the proposed dwelling so that it has a pitch of 3 degrees from the same pitching point indicated on the approved plans and lowering the chimney.
3. Mr and Mrs Karellas lodged an application on 7 October 2015 with the council that sought to modify those two conditions and as that application had not been determined in the prescribed period they lodged an appeal on 4 December 2015 against its deemed refusal.
4. The matter commenced as a conciliation conference pursuant to the provisions of s34AA of the Land and Environment Court Act 1979 with resolution of some but not all of the contentions. No agreement was reached in relation to the majority of contentions and the matter proceeded to hearing. The parties agreed that the matters discussed in the conciliation process would be evidence in the proceedings and as the result of those discussions, the applicant proposed a number of amendments to the proposal during the hearing.

The site and its context

1. The site is legally described as Lot 9 in DP 6910 and is known as 9 Burran Avenue, Mosman. It is located on the western side of the street between Kirkoswald Avenue to the north and Stanton Road to the south, has a site area of 861sqm and is a quadrilateral shaped lot with a street frontage of 17.27m. The site falls approximately 11.8m from around RL 46.61 in the north western corner to RL 35.63 in the south eastern corner at the front property boundary, a fall of around 11m.
2. The site currently contains a two storey dwelling house with a detached deck and cabana. That deck is located at the rear, high point of the site and would be demolished to allow the construction of the proposed pool and poolhouse.
3. The existing dwelling is currently 2 storeys with the lower level at street level containing garage, gym, store rooms, bathroom and hallway and the upper level containing the main living areas and bedrooms.
4. The backyard area is terraced into three separate areas. The lower level is at approximately RL40 and corresponds to the upper floor level of the existing dwelling house. This area comprises lawn areas that have minor walls that also terrace that level. The mid-level is another lawn area and is at around RL42. A timber deck attached to the rear of the existing dwelling is also located on that level and reached from stairs that connect to the main dwelling and lower yard area. The upper level is reached from stairs that connect to the mid-level and comprises an elevated timber deck at RL45.61 and garden areas including a rock shelf.
5. Two large eucalyptus trees are located on the lower and mid-levels of the yard. Both trees have been the subject of arboricultural assessment and it is agreed that the northern tree which is on the mid-level can be removed and the larger, lower tree, Tree 1, should be retained.
6. Surrounding development consists of large multi-level dwelling houses, the majority of which enjoy panoramic views across Sydney Harbour towards The Heads.
7. A part 3 storey detached dwelling house with a swimming pool adjoins the site to the immediate north (No 7 Burran Avenue), a two storey dwelling to the north west adjoins part of the northern side boundary (No 23 Kirkoswald Avenue), a two storey duplex building with pool adjoins the site to the west/rear (No 21 Kirkoswald Avenue) with a part three storey dwelling and pool adjoining to the south (No 11 Burran Avenue). The topography of these adjoining sites and the locality generally comprise moderately sloping land.

Background and the proposal

1. The development application was approved by council on 17 June 2015 and authorised alterations and additions to the existing dwelling house and contained a number of conditions including those that are the subject of the appeal. Those conditions, conditions 2 and 3 are in the following form: Amended Plans - Pool House 2. The pool house, swimming pool, tank room pool plant room, associated stairs and other structures shall be deleted from all drawings, including the landscape plan, due to amenity impacts on neighbouring properties and the natural landscape. There shall be no cut or fill of the rear exposed rock. The Eucalyptus saligna (Sydney Blue Gum), being Tree 2, is to be retained. The area shall be soft landscaped and ground levels are not to be changed within the Tree protection Zone (TPZ) of either Tree 1 or Tree 2. Details to be shown on the Construction Certificate plans. Amended Plans - Roof and Chimney 3. The roof shall be amended to have a pitch of 3 degrees from the same pitching point as indicated in the plans, and the chimney shall be lowered in conjunction with the roof so that it remains proportionally the same distance above the roof. This will aid in reducing view loss caused by the proposal with no loss of amenity or built form to 9 Burran Avenue. Details to be shown on the Construction Certificate plans.
2. The modification application seeks to provide for the construction of the pool and pool house and change the roof form from that detailed in condition 3 through the deletion of conditions 2 and 3 and modification of condition 1 to replace the plans listed in that condition with the plans attached to the modification application where relevant.
3. The details of the proposal, as described in the applicant's "Statement of Modifications and Environmental Effects" filed with the Class 1 application are described as follows: The proposed change to the roof form proposes a roof ridge level of RL 45.85. The change in the roof form will provide a more balanced architectural resolution to the dwelling house, rather than the "flat top" appearance that results from condition 3 of Consent 8.2014.233.1. It will ensure that the proposed roofing materials (i.e.: metal sheet roof) can be provided with a high quality finish…… The pool and pool house have been redesigned to ensure compliance with the relevant controls in the MRDCP. The pool house is now set back 900mm from both the western and northern boundaries of the property. The building is a single-storey structure and complies with the relevant building height controls.
4. The plans before the Court provide for the maximum roof ridge height to be established at RL 45.85 with the pitch of the roof varying from 3 to 9 degrees and top of chimney at RL46.03.
5. The proposed pool house would be located in the north western corner of the site setback 900mm from the northern and western boundaries and approximately 5.5m from the southern boundary. It is a triangular shaped structure with a proposed floor level of RL45.4 and would contain a covered seating area with sink and storage, a toilet, shower, vanity basin and steam room. The orientation of the structure is to the east. It has been designed to provide for the retention of the existing rock shelf and to capture views to the south towards Balmoral.
6. The pool would be constructed with a terrace at RL45.4 and the water level at 45.85.
7. A stairway constructed 900mm from the northern boundary would provide access to the pool and pool house from the mid-level yard area. A second stairway would connect that level to the lower level yard with the existing terracing retained. The pool has been designed to limit the extent of excavation of the site and would sit on top of the upper terrace level. A water tank and pool plant room would be constructed below the main pool at a level similar to the existing upper terrace area.

The planning controls

1. The site is zoned R2 Low Density Residential under Mosman Local Environmental Plan 2012 (LEP) and is within a Scenic Protection Area. The proposed development is permitted with consent.
2. Clause 1.2 of the LEP lists the aims of the plan. Clause 2.3(2) requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The objectives of the R2 zone are: • To provide for the housing needs of the community within a low density residential environment. • To enable other land uses that provide facilities or services to meet the day to day needs of residents. • To retain the single dwelling character of the environmentally sensitive residential areas of Mosman. • To maintain the general dominance of landscape over built form, particularly on harbour foreshores. • To ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. • To ensure that development is of a height and scale that seeks to achieve the desired future character. • To encourage residential development that maintains or enhances local amenity and, in particular, public and private views. • To minimise the adverse effects of bulk and scale of buildings.
3. Part 4 of the LEP provides for Principal development standards with clauses 4.3 - Height of Buildings, 4.3A - Height of Building (Additional Provisions) and 4.4 - Floor space ratio (FSR) relevant to consideration of the application. According to the LEP maps, the maximum building height is 8.5m and FSR is 0.48:1.
4. Clause 6.4 applies to the site as it is identified in a scenic protection area with subclause (3) providing that development consent must not be granted to any development on land to which this clause applies unless the consent authority is satisfied that: (a) measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour, and (b) the development will maintain the existing natural landscape and landform.
5. Clause 6.6 Landscaped areas provides that the consent authority may refuse consent to development involving the erection of a building unless at least the specified minimum landscaped area of a site (as a percentage of the site area) is provided for the development. As the site has an area of 861sqm, that percentage is 45%.
6. Mosman Residential Development Control Plan (DCP) applies to the site and the relevant provisions are listed in the Council's Statement of Facts and Contentions filed on 29 January 2016. The site is within the Rosherville/Wy-ar-gine Townscape and, clause 7.21.1 describes the area and character as follows: The Rosherville/Wy­ar­gine Townscape is characterised by sloping topography and a north eastern aspect which forms an amphitheatre around Chinaman's Beach and Rosherville Reserve. The topographical variety is one of the most distinctive features of this area. The varied and irregular lot layout has been substantially influenced by topography. Divided, contour based roads and sandstone retaining walls in response to topography are important character elements. Buildings are generally well spaced and oriented to water views to Middle Harbour. The majority of housing is post World War II, with substantial development on Wyargine Point. The area has a diverse architectural character ranging from recent large pseudo­Tuscan villas, contemporary urban courtyard housing, to earlier Sydney School style residences. The quality and character of roof elements is particularly important in this area because of the visibility afforded by the topography. Remnant native Angophora dominated bushland, the open space and foreshore of Chinaman's Beach and Rosherville Reserve, sandstone cliffs and views to Middle Harbour are important features of the area. The area has an exposed landscape with some enclosed valleys. Tree cover varies with remnant bushland, including magnificent Angophoras, and some introduced Norfolk Pines and jacarandas evident throughout the area. Community facilities include Parriwi Park Rosherville Lighthouse, Rosherville Reserve and Chinamans Beach.
7. Section 6.2 applies to swimming pools, spa pools/baths and water features and has the following objectives: To have pools, spas and water features appropriately located ot minimise the visual impact of the structure and their impact on the amenity of adjoining residents. To have the landscaped quality of the locality maintained and enhanced. To have minimal adverse impact of water spillover and the pool/spa/feature adequately drained. To have pools/spas/water features that have safe and adequate access in accordance with legislative requirements.
8. The planning controls relevant to the contentions in the case are: P1. Pools/spas should be located behind the front building line, preferably at the rear of the main building. P3. Any pool/spa/water feature must be setback from a property boundary by a minimum of 2m to the external edge of the pool surround. In cases where a proposed pool is adjacent to habitable rooms of an adjoining dwelling, a greater setback than 2m may be required. the setback area must be appropriately landscaped. P4. Any pool/spa surround must be located at or below ground level (existing). Elevated pool/spa structures above the natural ground level are expressly discouraged. If a pool/spa structure is proposed that is located above the ground at any point, the finish of the structure should blend into the background environment and or landscaping and not visible from a public place. P9. The location of a pool/spa/water feature and its equipment/plant must ensure that disturbance to the occupants of adjoining property and buildings is minimised. This includes noise emissions arising from equipment/plant as well as from water movement when the water feature is in full operation. P15. Wherever possible, natural features of a site including rock outcrops, slopes or other topographical features shall be kept. P16. Excavation should be limited to the footprint and depth of the pool/spa/feature.

The issues

1. The contentions in the case that are pressed by the council are whether the proposed development is substantially the same development that was approved; view loss unless the height of the roof ridge is lowered by 400mm and whether the development is appropriate for the site and results in an overdevelopment and impacts on the adjoining property, No 11 Burran Avenue through loss of privacy.
2. There is a dispute between the parties as to whether the development meets the building height and FSR development standards that apply to the site.

The evidence

1. The hearing commenced on site with evidence heard from a number of objectors to the proposal at their properties, Nos 7 and 11 Burran Avenue and No 23 Kirkoswald Avenue.
2. Height poles had been erected on the site that indicated the extent and height of the proposed roof to assist in the assessment of view impacts.
3. The issues raised by the objectors is summarised as follows:

• Height of the proposed pool house will block iconic views;
• Siting of pool house will impact on visual and acoustic privacy;
• The proposed pool house is an imposing structure with visual bulk;
• Proposed tree planting will block views;
• Roof height will block views from dwelling and exceeds the maximum building height control;
• Proximity of stairs and pool will impact on privacy and amenity of existing pool and associated pool area and concerned about security;
• Pool house and pool will overlook backyard, balcony and windows of adjoining property resulting in privacy loss;
• Height, bulk and scale of the pool and pool house is excessive, non-compliant with the planning controls and not compatible with the locality.

1. A joint report was prepared by Mr G Palmer and Mr S Wall, arborists, Exhibit 2 in relation to the two Eucalyptus Saligna trees in the rear yard that they have identified as Trees 1 and 2. They agree that both trees will have been planted less than 30 years ago and provide a moderate arboricultural significance and because Tree 2 is located within the upper portion of the landscape with limited access to adequate soil volumes it has not developed as much mass as Tree 1 which is more significant. For that reason and the shallow section of soil profile that Tree 2 sits, no objection to its removal was raised.
2. They agreed that the plans proposed construction within 2.3m of the base of Tree 1 which is directly adjacent to the tree's Structural Root Zone (SRZ). Mr Wall says, that to comply with the provisions of AS4970 an additional 1m clearance is required to ensure that the tree's arboricultural viability continues. Mr Palmer said with the site topography being 1.2m above the tree's base this would affect root development and will limit the impacts of the construction/excavation making it arboriculturally feasible despite the conflict with AS4970.
3. It is common ground that the arboricultural impacts of the construction process are accumulative and will need to be appropriately addressed to ensure the preservation of Tree 1. Splash back and drainage issues will need to be addressed to ensure no soil contamination occurs following the construction process and that no plumbing, excavation and construction affects the tree.
4. The trees were inspected during the site view and the applicant agreed to reduce the size of the proposed pool house so that the additional 1m setback sought by Mr Wall would be provided.
5. Subject to these amendments, the arborists were not required for cross examination.
6. The applicant prepared an amended floor plan for the pool house that reflected the additional 1m setback to protect the tree (Exhibit D).
7. Expert planning evidence was heard from Mr G Goodyer for the applicant and Ms G Brooks for the council. Ms S Hannan provided landscape evidence for the applicant.

The roof

1. Following discussions in the conciliation phase of the hearing, that discussion being agreed by the parties to be material considered in determination of the application, the applicant agreed to reduce the ridge height of the dwelling to RL 45.5, a reduction of 350mm. That reflected what was agreed at the site view to be the height of the cross bracing on the height poles and was, at that time considered to be acceptable by the planning experts to address the view impacts when viewed from the kitchen and dining rooms of the adjacent residence, No 7 Burran Avenue.
2. Despite this agreement, Ms Brooks when giving evidence in Chief, said the ridge height should be reduced by 400mm because she was not sure of the precise height of the cross bracing and that would provide for a margin of error. That would result in a ridge height of RL45.4, provide for a pitch of 6 degrees and 600mm for the roofing structure. Mr Goodyer says the agreed position was the cross bracing was 300mm below the top of the pole and with the 50mm discrepancy to the top of the ridge, the agreed height would be RL45.5.
3. The experts disagree on whether the dwelling would comply with the development standard for building height. Mr Goodyer says, at a ridge height of RL45.85 the dwelling would comply with the 8.5m development standard interpreting the existing ground level to follow the slope of the site. Ms Brooks says the height is 9.83m as the existing ground level equates to the lowest floor level of the dwelling i.e. RL 36.02.
4. Providing for the applicant's agreed position to lower the ridge height to RL45.5, the opposing positions of the experts for building height would be, in the case of Mr Goodyer 8.15m and Ms Brooks 9.48m.
5. At the site view the experts agreed that the impact of the roof affected views from No 7 Burran Avenue and those views were from the kitchen and adjacent dining area of that dwelling. The view is a water view, being part of the water of Hunters Bay/Middle Harbour and includes Balmoral Beach and Rocky Point.
6. These views are across the side boundary of the site and are obtained from standing positions with the views from the dining area, being centrally located within the dwelling, being assessed from a sitting position across the side boundary. The experts agree that the views are not iconic. Ms Brooks says the views are significant in the context of the view and the land/water interface in Mosman.
7. In the expert's joint report, Exhibit 3, which was prepared prior to the applicant's offer to reduce the ridge height by 350mm, Ms Brooks described the extent of view loss from No 7 as moderate whereas Mr Goodyer says it is minor.
8. Ms Brooks says that because the proposal does not comply with the building height control or satisfy the objectives (i) and (iv) of the building height standard in the LEP or the planning controls relating to roof design in the DCP it is unreasonable. Mr Goodyer says the building height is compliant, the proposal is a skilful design, adopting a hipped roof form with expansive views retained from many vantage points within the property, even from the rooms that are affected. For these reasons he says the proposal provides for reasonable view sharing.
9. It is common ground that the roof has no impacts in terms of view loss to any adjacent property other than No 7 Burran Avenue.

The pool house and pool

1. To respond to the objection made on behalf of the owner of No 23 Kirkoswald Avenue, the applicant proposed the reduction in height of the proposed pool house. The plans before the Court provide for a roof height of RL48.2 and the amended proposal would be for a roof height of RL 47.7, a reduction of 500mm. That height was determined having regard to what height a boundary fence on the common boundary would be constructed at being, in accordance with the DCP, 1.8m high.
2. The ground level where the pool house is proposed along that boundary varies from RL45.45 to RL47.34. A 1.8m high fence would, if sloped to follow the levels of the site range from RL47.25 to RL49.14. The landscape plan (Exhibit B) (prepared prior to the amendments) provides for a masonry wall on the common boundary between the site and No 23 with a timber paling fence above. The top of fence is shown at RL48.8 at the western end and 47.2 at the eastern side following the slope of the land.
3. Accordingly, with the amendments, the pool house would sit below the fence height where it adjoins 23 Kirkoswald Avenue.
4. The consequential amendment to the pool surround would be a level of RL44.9.
5. It was agreed by the planning experts that these changes resolved the contention of view loss from No 23.
6. Ms Brooks says the proposed pool house represents an overdevelopment of the site. This is demonstrated in the numeric non-compliances of floor space ratio, landscaped areas and setback requirements as well as visual and privacy impacts on built form and impacts on trees at the site. The cumulative impacts of the pool house make the proposed structure unacceptable.
7. Ms Brooks does not object in principle to a swimming pool being constructed at the site and provided diagrams which indicated what she considered would be acceptable. The changes are detailed in paragraph 42 of the Joint Report and involve: (1) structure within 10% of the SRZ into Tree 1 to be deleted; (2) no level change in Tree Protection Zone of Tree 1; (3) the floor level of the pool house and terrace to be lowered to RL42; (4) the roof of the pool house to be lowered to RL44.8; (5) the bottom of the pool be lowered to RL 40.95; (6) the top of the northern wall of the pool house to be lowered to RL42.9; (7) the pool stairs and surround within the 2m boundary setback be deleted; (8) pool plant be relocated under garden stairs; and (9) the pool is to be fenced from the pool house so that it can be accessed without entry into the pool area. She says that if the pool house was lowered, overlooking would be reduced to the extent that with additional measures such as dividing fences, planting and spatial separation would be acceptable.
8. The amendments agreed by the applicant and sketched on plans in exhibits before the Court satisfy items 1 and 2. The difference between the parties is whether the roof of the pool house should be at RL47.7 or RL44.8 with consequential differences to the levels of the pool surrounds and bottom of the pool. The difference is 2.9m and would require excavation of the site by up to 7m and removal of the rock shelf to accommodate the pool house and excavation of the upper lawn area to a depth of approximately 1.5 to 2m.
9. Mr Goodyer says that the development is consistent with recent approvals in the vicinity of the site and adjoining development in terms of siting, scale, building bulk and landscape area with the proposal performing better on all criteria when compared with an earlier consent that applied to the site and the consent for No 7 Burran Avenue. He has included a map (page 28, Exhibit 3) that shows the extent of landscaped areas on adjacent sites noting that the proposal provides for 41% of site area and 45% is required and adjacent sites provide between 13.7% and 52.5% and concludes the proposed development will result in a landscaped area that will comfortably fit in with the character of the immediate locality.
10. Mr Goodyer says that the development does comply with the building height development standard as natural ground level is the level that is consistent with the findings in Bettar v Council of the City of Sydney [2014] NSWLEC 1070 and not the floor level of the garage as determined by Ms Brooks.
11. Ms Hannan says the DCP landscaping control P4 requires vegetation and landscaping to soften the built form and that this will be achieved by planting of native shrubs around the western and northern perimeters within the 900mm minimum setback provided. Adjacent to 7 Burran Avenue on the northern site boundary, the planting will be maintained at a height not higher than the existing brick wall on that boundary so that no views are impacted with similar treatment adjacent to No 23 Kirkoswald. Planting is proposed to soften the appearance of the high pool wall that separates the site from 21 Kirkoswald. The levels of the proposed works require minimal excavation or fill and have been designed so as to retain existing sandstone rocks and to extensively maintain the existing soil levels within the rear yard.
12. To address the council's and neighbour's privacy concerns, the applicant has lowered the pool house, pool surrounds and pool and also indicated that it would be prepared to delete that portion of the pool surround that immediately adjoins the pool house. The purpose of deleting that area would be to restrict access to that area closer to 11 Burran Avenue. Plans that indicate sight lines from the lowered pool surrounds were tendered as Exhibits F and G however unfortunately, they do not include the same levels as those described at [49] and [52] above. Whereas the roof height was reduced to RL47.7, these plans show a roof level of 47.5 and 47.6 and pool surround of 44.8 and 44.9 rather than the 44.9 discussed earlier. The plans show a boundary fence of 1300mm (Exhibit F) and 1800mm (Exhibit G) and project the sight line towards the southern boundary of 11 Burran Avenue.
13. The Exhibit G plans show the correct pool surround area and a 1.8m high boundary fence between the site and No 11 Burran Avenue. These plans indicate that a person standing on the pool surround would not see into the pool area or its surrounds of No 11.
14. Mr Goodyer says reasonable privacy is provided for neighbouring properties with a separation distance of at least 15m provided from the nearest viewing point (the south-eastern corner of the pool) to the upper floor bedrooms and terrace and the ground floor kitchen and appurtenant terrace. This substantially exceeds the separation distance of 9m required to mitigate privacy impacts by planning control P1 in Part 5.7 of the DCP. A person swimming in the pool is separated approximately 9m from the property boundary with No 11 and this separation distance is sufficient to mitigate any privacy impacts with regards to the rear yard of No 11 and complies with the DCP. In addition, existing vegetation on both sides of the boundary fence provides additional privacy and prevents sight lines between the properties.
15. Ms Brooks disagrees and says this area of Mosman is sloped and this variation in topography provides challenges for the sites regarding privacy. Because the site is elevated above No 11 this increases opportunity for adverse privacy impacts, therefore the proposal should take this into account as the impacts would be significant. She says that 9m separation is only sufficient when a site is flat because the person who is lower cannot protect their privacy. She did concede that if the 1.8m high fence was provided and there was no need to rely on boundary planting as there would be sufficient privacy and that in the locality privacy was sacrificed for views, with the proposal similar in effect to the overlooking by No 7 to the subject site and also how No 11 overlooks No 13 Burran Avenue.
16. Ms Brooks says that the DCP requires a 2m setback to the pool edge that is to be landscaped and whilst the pool edge is setback a greater distance only 900mm is landscaped. She agrees the purpose of the setback is to provide spatial separation and landscaping and that by replacing part of the pool coping with grass the control would be met however the area would be highly trafficable. As at least 2.4m setback is provided she agrees that the dimension is achieved but says the control is not met as it calls for landscaping. She agrees that if the landscaping that is proposed can be seen it would make a greater landscape contribution than grass and that what is proposed would be both numerically and of a form that is similar in character to the locality.
17. In relation to amenity issues, Ms Brooks agreed that there are no legitimate noise concerns in relation to the use of the proposal, that the location of the stairs is compliant with the DCP controls and that if the stairs did present a privacy concern that could be addressed through additional planting on the site however she did not recommend that this is undertaken due to the impact of that planting on views from adjoining properties. She did not consider that the development resulted in any safety or security concerns or other amenity issues.

Conclusion and findings

1. The application has been made pursuant to the provisions of s96(2) of the Environmental Planning and Assessment Act 1979 (EP&AAct) and seeks to modify the consent. That section is in the following form: (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 5) 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.
2. A precondition to modification of the consent is that I must be 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. There are two components in this case, the first, the ridge height and the second the pool house and pool.
3. The council consented to the construction of the dwelling house with condition 1 requiring the preparation of amended plans that provide for an alternate roof design with reduced ridge height. The condition specifically states that its purpose is to aid in reducing view loss caused by the proposal. Bignold J in Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280 provided guidance and states: 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).
4. Applying both a qualitative and quantitative analysis of the roof element of the approved development and the development that would result should the modification provide for a ridge height of RL45.5, I am satisfied that the development would be substantially the same as that approved. That is because the development would retain the important aspects of the view that is enjoyed across the boundary of the site from No 7 Burran Avenue. The additional roof height would impact on the foreground view which primarily comprises roofs of dwellings to the south. It is clear from the wording of the condition that it seeks to retain important views and I am satisfied that this would be achieved if the modification to the ridge height was allowed as these essential elements remain.
5. The pool and pool house are, by virtue of condition 2, not part of the approved development. This issue was considered by Tuor C in Morris v Leichhardt Council [2008] NSWLEC 1106 where the same tests were applied, asking whether the modification will be essentially or materially the same development. At [26] she states: The pool will add a new structure, which has impacts that are required to be assessed. However, it does not radically transform or change the essential character of what is approved. A swimming pool is an ancillary part of a residential use of a site for which approval has been granted. The pool does not change the use of the site. It maintains the area of the site used for active recreation, although it adds a structure to this area. The pool is consistent with the description of the development in the Notice of Determination for, inter alia, alterations and additions to existing dwelling and associated works.
6. This case is almost identical to that considered in Morris and I follow Tuor C's reasoning. The approved development is described as Alterations and additions to a dwelling house comprising ground and first floor additions, swimming pool and pool house, and landscaping works. The pool does not change the use of the site as it is an ancillary part of the residential use. It maintains the area for recreation adding a structure to the area with the remainder of the site landscaped.
7. Accordingly, I am satisfied that the proposed development would be substantially the same development as that approved under the consent. My assessment of submissions received by the council in relation to the application as required under s96(2)(d) follows.
8. Having regard to the evidence and in particular the discussion during the site view, I am satisfied that a ridge height of RL45.5 is appropriate and provides, in accordance with the planning principles in Tenacity Consulting v Warringah [2004] NSWLEC 140 and the DCP, reasonable view sharing. That is because, I agree with Mr Goodyer that the building height measured at the ridge would be compliant at RL45.5 as evidenced in observing the rock shelf within the lower levels of the dwelling, surrounding ground levels and having regard to Bettar. At this compliant height, the adjacent property, No 7 Burran Avenue, will retain views of the land and water interface to the south across a side boundary where that property enjoys panoramic and iconic views from the majority of its living areas. The impact will be to foreground views of adjacent dwelling houses and maybe minor water views.
9. There is an apparent conflict in the council's DCP controls for pools. One control calls for pools to be located at or below ground level and another to retain natural features of a site including rock outcrops, slopes or other topographical features with excavation limited to the footprint and depth of the pool. The proposal seeks to retain the rock outcrop, slope and topographical features of the site by introducing the pool structure as an element that reflects that slope and topography. The council does not raise any objection to the proposed stone wall that would retain the pool structure. Ms Brooks' concerns relate to the bulk and scale of the structures and the privacy impacts.
10. It is agreed, at the lowered heights proposed by the applicant, that the pool house and pool structure would have no adverse view impacts to any adjoining properties. What remains in dispute is at what level the pool and pool house should be constructed.
11. I prefer the applicant's proposal to that proffered by Ms Brooks. That is because it would retain the natural features of the site including the rock outcrops and slope consistent with the DCP controls and also minimise the extent of excavation.
12. Whilst not discussed during the hearing, the Court notes that to comply with Ms Brooks' levels, the pool surrounds would sit some 600mm to 1m below the existing grass level with the pool edge sitting at or below the top of the central retaining wall. This introduces the need to retain that grass area in proximity to the TPZ of Tree 1 and address stormwater drainage issues. This scenario is likely to lead to a desire by the applicant to reduce the height of the whole of the mid-level grassed terrace to a level similar to that of the pool surrounds thereby increasing the extent of excavation, requiring the removal of the existing terracing and vegetation and increasing the extent of retaining walls along the northern property boundary.
13. The experts agree that the proposed reduced roof, pool surround and pool levels satisfactorily address view impacts and I agree that the height of the proposed pool house, pool surrounds and pool structure should be reduced to have the top of roof at RL47.7, pool surrounds at RL44.9 and pool edge at RL45.35. I accept Ms Brooks' evidence that the structures will not result in any adverse amenity impacts in terms of noise.
14. The reduction in height and the provision of a 1.8m high boundary fence along the southern boundary of the site will, combined with the deletion of the western pool surround adjacent to the pool house and the available separation distance, provide adequate privacy to properties to the south over the separation distances required under the DCP controls. Those controls do not differentiate between flat and sloping land and a greater distance than 9m is provided.
15. It is clear, as agreed by the experts, that in this locality total privacy is sacrificed for views and there is considerable overlooking between properties including the site being significantly overlooked from Nos 7 and 11 Burran Avenue. I consider that the outlined amendments satisfactorily address privacy concerns.
16. I accept the evidence of the arborists that it is appropriate to provide an additional 1m setback to ensure the long term viability and retention of Tree 1 and consider the plans should be amended accordingly.
17. The FSR is satisfactory given the reduction in the size of the pool house to provide the additional 1m to the TPZ and the fact that I would not include the basement storeroom as floor space for the purposes of calculating GFA that was included by Ms Brooks. This is consistent with the definition in the LEP which excludes any basement storage. The area that Ms Brooks included has reduced head height and is not a habitable room. I do not consider the development will result in excessive bulk when viewed from adjoining properties, in fact, the proposal should improve the visual impact of the significant wall along the western boundary of the site which will be softened by landscaping.
18. The 1.8m high boundary fence would further mitigate any visual bulk of the pool house.
19. I am satisfied, as required under Clause 6.4 of the LEP that the development as modified would be appropriate in the Scenic Protection Area and that adequate landscaped area is provided without the provision of the 2m wide landscaped strip adjacent to the northern boundary and pool edge and despite the percentage of landscaped area being slightly less than the 45% required under clause 6.6.
20. The development as modified would be consistent with the character envisaged for the Rosherville/Wy-ar-gine Townscape.
21. To ensure that the amendments proposed are workable and address the findings in this judgment, plans which detail those changes should be prepared. Those plans should:

• Retain rock shelf where possible;
• Provide the additional 1m setback to reduce impact to TPZ of Tree 1 which is to be retained and protected with no change to levels and inclusion of conditions as recommended by the arborists;
• Lower roof of pool house to RL47.7;
• Lower pool surrounds to RL44.9;
• Delete the pool surround between the water edge and pool house;
• Provide a 1.8m high boundary fence between site and No 23 Kirkoswald;
• Locate stairs as far west as possible to reduce proximity to No 9 Burran Avenue;
• provide appropriate boundary landscaping that will not impact views;
• Ensure that the works do not result in issues with non-compliance with the Swimming Pools Act 1992 for the site and No 7 and show fencing details that comply with that Act;
• Provide 1.8m high boundary fence between site and No 11Burran Avenue;
• Reduce ridge height to RL45.5 from the same pitching point.

1. On receipt of those plans and conditions that reflect same, the modification of the consent can occur.

Directions

1. The applicant is to prepare, file and serve amended plans that reflect the findings of this judgment and in particular the matters listed at [85] by 13 May 2016.
2. The council is to file modified conditions of consent by 20 May 2016 in the form of consolidated conditions of consent as required in the Court's practice direction made on 1 November 2013 to allow final Orders to be made in Chambers.

Addendum made on 31 May 2016

1. In accordance with the terms of the directions in my judgment of 29 April 2016, on 13 May 2016 the applicant provided me with amended plans and on 30 may 2016 the parties provided me with the agreed conditions of consent. I am satisfied that the conditions of consent/amended plans accord with my findings and accordingly I make orders in chambers as follows: 1. The appeal is upheld. 2. Modification Application 8.2014.233.2 to modify Development Consent No 8.2014.233.1 is determined by approving the following modifications to the conditions: 1. Substituting the amended plan references in Condition 1. 2. Deleting conditions 2 and 3. 3. Adding conditions 19A, 32A, 47A, 59A, 59B, 59C, 59D, 59E, 63A and 63B. 1. As a consequence of order (2), Development Consent Non 8.2017.233.2 is now subject to the consolidated, modified conditions of development consent set out in Annexure A. 2. The exhibits, other that Exhibits A, B and C are returned.

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Sue Morris Commissioner of the Court 159074.2016 Morris (C) (349 KB, pdf) 159074.16 Morris_Amended Plans (11.4 MB, pdf)

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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: 09 June 2016