Nicola v Waverley Council

Substantially the same development

1. Irrespective of whether the modification application is lodged under s 4.55(1A) or s 4.55(2) the Court as the consent authority needs to 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 and before that consent as originally granted was modified (if at all)" (s 4.55(2)(a)).
2. There was no dispute between the parties that the development to which the proposed modification relates is "substantially the same" as the original development. To be satisfied it is necessary to understand and compare the development as originally approved and as proposed to be modified. I have considered this matter and concluded that the proposed development as modified is substantially the same as the development as originally approved.

The original and modified development

1. The subject modification DA relates to a 328m2 allotment of land identified as Lot 4 in DP 12571 at 27 Princess Street, Rose Bay (the site). The site is occupied by a part two, part three storey brick detached dwelling house, with an integrated double garage accessed from Gilbert Street and a swimming pool to the north facing Princess Street (the existing dwelling).
2. On 1 February 2018 the Council granted consent to the original DA (Development Application DA-513/2017) for alterations and additions to the existing dwelling, including the reconfiguration of internal room layouts; changes to the external façades including windows, balconies, rendering and painting the brickwork; and the inclusion of a lift from the basement level to the two levels above. The original DA set of plans, as approved by Council, were prepared by Manor House Design and dated 27 November 2017. A copy of the approved original DA set of plans was provided to the Court as Exhibit 2 in the proceedings. They did not involve any changes to the height of the building or the roof level. That approval has not yet been activated by any works.
3. On 11 September 2018 the Applicant lodged an earlier modification application made pursuant to s 4.55(2) of the EPA Act - Development Application DA-513/2017/A (the first modification application). It was based on plans prepared by Manor House Design dated 21 June 2018. A copy of the approved first modification application set of plans was provided to the Court as Exhibit 3 in the proceedings. The first modification application sought consent for: 1. a roof terrace, involving an extension of the lift to the terrace with a metal canopy, glass balustrading, and concrete planter box along the western edge of the terrace; 2. air conditioning units on the roof level; 3. new window openings on the western elevation at the ground and first floor levels; 4. partial removal of the new wrap-around window to the kitchen on ground level; and 5. conversion of a store room to a bathroom on the basement level.
4. On 9 January 2019 the first modification application was partially approved, subject to conditions. Condition 1A (General Conditions) was inserted to expressly remove from the plans the "roof terrace and all proposed associated structures on the roof level (including lift overrun, metal canopy, glass balustrade, concrete planter box and air conditioning units)" which were not approved. The reason stated in the inserted Condition 1A for not approving the roof top terrace and associated structures was "in order to prevent adverse view loss and visual and privacy impacts upon surrounding properties".
5. On 15 August 2019 the subject modification DA was lodged with Council. It related to a set of plans prepared by Manor House Design, dated 18 July 2019 (as filed with the Court as part of the Class 1 Appeal documentation on 14 May 2020). As lodged at that time the subject modification DA sought consent for an extension of the approved lift to the roof level, with a glass canopy over, a new 15m2 rooftop terrace, with glass balustrade, and concrete planter along the western side of the terrace.
6. The subject modification application was notified by Council for 14 days between 29 August 2019 and 12 September 2019, resulting in the receipt of four submissions by way of objection. On 20 November 2019 the subject modification application was refused by Council's Development and Building Unit.
7. The Court arranged a conciliation conference between the parties pursuant to s 34AA of the Land and Environment Court Act 1979 (LEC Act). In preparing for the s34AA conciliation conference the town planning experts, Mr Anthony Betros for the Applicants and Mr Joe Somerville for the Council, (the town planners) had conferred and prepared a "Joint Report of Planning Experts" dated July 2020 (Joint Report) that became Exhibit 6 in the proceedings. At paragraph 9 of the Joint Report the town planners agreed that the subject modification DA plans, as originally submitted on 15 August 2019, could not be supported on the basis of excessive height and visual impact.
8. In an attempt to resolve or reduce the contentions Mr Betros, at the town planners' joint conference, provided an amended set of plans, prepared by Manor House Design and dated 14 July 2020 (Amended Plans). The Amended Plans were discussed by the town planners and appended to the Joint Report as Appendix 1. The Amended Plans formed the basis of the comments provided in the Joint Report and as the basis of the s34AA conference discussions. They were tabled as Exhibit A in the hearing and the Applicant was granted leave to rely on the Amended Plans.
9. The main changes between the Amended Plans and the plans submitted on 15 August 2019 can be summarised as: 1. the 15m2 rooftop terrace was relocated in a northerly direction and the planter box on the roof was removed; 2. the lift access to the rooftop terrace was removed and replaced with a new stair access, housed within a glazed structure that protrudes above the roof level. The stair access is located above the existing stairwell; and 3. internal changes, that were not in contention, including the retention of the existing stairs in their current location and largely retaining the existing layout of rooms located in the vicinity of the stairs.
10. In comparing the proposed development, as amended by the Amended Plans, with the development approved in the original DA I find that they are "substantially the same". The development, as proposed to be modified and as approved, is for alterations and additions to the existing dwelling, including the reconfiguration of internal room layouts, changes to the external façades including windows, balconies, rendering and painting the brickwork and the inclusion of a lift from the basement level to the two levels above. The proposed modification involving the addition of a rooftop terrace and access stair is not substantially different as to warrant a new DA.
11. I presided over the s34AA conciliation conference held on 30 July 2020. The conciliation conference commenced with a view on site, including viewing the site from the first and second floors of an objector's property at 30 Gilbert Street, located immediately opposite the site. Due to the Court's COVID-19 Pandemic Arrangements Policy (March 2020) restrictions in place at the time, and as agreed between the parties, oral submissions from objectors were not taken on site, but heard on the afternoon of 30 July 2020 via a Microsoft Teams link. Oral submissions were taken by this method from residents of 30 and 34 Gilbert Street, both of whom had previously lodged written objections with the Council. An agreed record of the notes of the objectors' oral submissions was later tendered, as part of the bundle of objector submissions that become Exhibit 1 in the proceedings.
12. As the parties failed to reach an agreement as to the terms of a decision that would be acceptable to them I terminated the s34AA conference and a hearing under the provisions of s 34AA(2)(b)(i) of the LEC Act commenced on the afternoon of 30 July 2020 and concluded the following afternoon of 31 July 2020. At the conclusion of the s34AA hearing on 31 July 2020 I reserved my decision and directed the parties to file by close of business on 4 August 2020 a revised version of Exhibit G, being the draft conditions of consent. The revised draft conditions were provided on 2 December 2020.

The Planning controls

1. The Waverley Local Environmental Plan 2012 (WLEP) is the relevant local environmental planning instrument applying to the subject modification DA, and the Waverley Development Control Plan 2012 (WDCP) is also relevant. Under the WLEP the site is located within the R2 Low Density Residential Zone (R2 Zone). There is no dispute that the alterations and additions to the existing dwelling house are permissible with consent in the R2 Zone. The development standards in the WLEP applying to this site are: 1. the cl 4.3 height of buildings standard, of 8.5m measured from existing ground level to the topmost point of the building; and 2. the cl 4.4 floor space ratio standard; in this case equating to 0.74:1.

The Contentions

1. The Council's Statement of Facts and Contentions filed with the Court on 4 June 2020 and tendered as Exhibit 5 (SOFC) relate to the subject modification DA prior to receipt of the Amended Plans. The SOFC lists ten contentions that Council claimed as grounds for refusal of the subject modification DA.
2. As a result of the changes documented in the Amended Plans and the provision of additional information by the Applicant, some of the contentions were resolved and not pressed in the hearing. I have summarised the remaining contentions, in the order they are listed in the SOFC, as follows: 1. The height of the proposed development and the extent of non-compliance with the 8.5m height of buildings development standard in the WLEP (Contention 1). 2. Visual privacy (Contention 4), namely overlooking from the proposed roof terrace to the adjoining dwelling at 25 Princess Street. 3. The environmental impacts of the additional height, and specifically: 1. the primary height-related concern of view loss from neighbouring properties across Gilbert Street (Contentions 5 and 9). 2. the inter-related issues of visual impact from neighbouring properties and on the streetscape, and whether design excellence is achieved (Contention 3).
3. An additional issue arising from the Amended Plans emerged as part of the town planners' evidence in the Joint Report. It revolved around a matter of compliance with the WLEP's floor space ratio (FSR) development. The planners disagreed on the application of the gross floor area (GFA) definition and therefore the amount of increase in the FSR of the building.
4. At the hearing, the parties agreed I could rely on oral submissions made from objectors and on my observations at the site view. The Applicant tendered in the hearing a set of three A3 sized colour photomontages of the proposed rooftop terrace and stair, based on photographs of the site taken from three vantage points (Ex D). The three photomontages in Exhibit D correspond to three key figures in the Joint Report (Ex 6), as follows: 1. Figure 10 - from 30 Gilbert Street at the first floor balcony in front of the kitchen; 2. Figure 11 - 30 Gilbert Street at the second floor balcony off the sitting area in the master bedroom; and 3. Figure 7 - 34 Gilbert Street at the roof terrace.
5. The Court had the benefit of viewing the site from 30 Gilbert Street and being able to consider the first two photomontages referred to in paragraph 23 above (Figures 10 and 11 of the Joint Report) from the same vantage points. The Court did not view the site from 34 Gilbert Street as the parties agreed it was less affected than 30 Gilbert Street in terms of view loss, as a result of the Amended Plans.
6. Oral evidence was provided in the hearing by the town planners, Mr Betros and Mr Somerville. The Court also had the benefit of opening and closing submissions by Mr Andrew Pickles SC for the Applicants and Mr Mark Hanna for the Council.

Building height (Contention 1) - calculation

1. In the Joint Report the planners disagreed on the height of the new stair enclosure, being the new topmost point of the building. Mr Betros considered that it was compliant with the 8.5m height standard, and was therefore acceptable in terms of what could be expected for this site. Mr Somerville on the other hand calculated the Amended Plans would exceed the height limit by 0.66mm or 7.8%, and the height was unacceptable by virtue of breaching the height limit.
2. In the hearing the differences in the calculations were explored and explained by the different "ground level (existing)" applied. The relevant definitions of "building height" and "ground level (existing)" in the Dictionary of the WLEP are: building height (or height of building) means - (a) in relation to the height of a building in metres - the vertical distance from ground level (existing) to the highest point of the building, or (b) in relation to the RL of a building - the vertical distance from the Australian Height Datum to the highest point of the building, including plant and lift overruns, but excluding communication devices, antennae, satellite dishes, masts, flagpoles, chimneys, flues and the like. ground level (existing) means the existing level of a site at any point.
3. Mr Betros confirmed he had used the finished floor level at the ground floor of the existing building as the starting point for his measurement of building height in the Joint Report. In oral evidence Mr Betros agreed that the ground level (existing) would in fact be a point under the ground floor, as the site view had revealed the ground floor was not constructed as a flat slab on the ground. Mr Betros was of the opinion that "the extrapolation method" should be employed to establish a reasonable approximation of the ground level (existing) immediately beneath the new stairwell enclosure. This method, as applied by Mr Betros, involved selecting two surveyed points, one on the east side and one on the west side of the building, closest to the area beneath the stairwell. The average of those two spot levels would then be a reasonable approximation of the ground level (existing) in the relevant area.
4. The "Detail Survey" tendered as Exhibit B (survey) provides a number of Reduced Levels (RLs) within and external to the site. In applying the 'extrapolation method' Mr Somerville agreed the RLs on the survey that were closest to the point immediately under the proposed stairwell's rooftop structure on the western side of the building was RL52.92 and the closest RL in a direct line on the eastern side of the building was RL53.49. He also agreed that if the 'extrapolation method' were applied based on these two reference points the average RL for the ground level would be RL53.205, resulting in a maximum permissible building height for the stairwell of RL61.705, and that the proposal would therefore be 375mm higher than the WLEP limit. Mr Somerville also agreed that the portion of the proposed development that was over the height limit at the landing top of the stair landing was approximately 2m2 in area.
5. The parties took the Court to Bettar v City of Sydney [2014] NSWLEC 1070 (Bettar) and Stamford Property Services Pty Ltd v City of Sydney [2015] NSWLEC 1189 (Stamford Properties) in order to provide some guidance on how ground level (existing) might be applied. In Bettar and Stamford Properties the same definitions of "building height" and "ground level (existing)" applied as those in this matter.
6. In written opening submissions Mr Hanna refers to the 'vagueness' in the definition of ground level (existing) as having been noted in Bettar and Stamford Properties. He points out the "…vagueness arises particularly for sloping sites and for complex sites that have been developed and excavated over time."
7. In Bettar O'Neill C found (at [35]) that the existing ground level "…is usually achieved by taking the lowest level of an existing site, as shown on the site survey, directly beneath the highest point of the proposed development". The difficulty of applying the ground level (existing) definition to that particular site was "that the existing building occupies the whole of the site area and there is no 'ground' (as in soil/garden/paving) around the building and on the site from which the existing ground level can be determined by a site survey." (Bettar at [37]) (Emphasis added).
8. In Bettar at [41] O'Neill C preferred Mr Chamie's approach to determining the existing ground level, as described at [34], which was to use the ground level of the footpath at the site boundary and extrapolate that level across the site.
9. In Stamford Properties similar circumstances to those in Bettar applied. It too involved a sloping site and the existing buildings occupied the whole of the site. In Stamford Properties Pearson C and Smithson AC agreed with the experts in that case that a three dimensional sloping height plane, measured from an extrapolation of adjacent footpath levels in Macquarie Street, Albert Street and Phillip Street, as illustrated in the diagrams included at [289] of that judgment, could be used as the basis for calculating the height.
10. Part C2 of Council's DCP includes at section 2.1 guidance on how to apply Council's height controls. Figure 5 on page 150 of the WDCP is entitled "How to calculate height on sloping land" and contains two diagrams, as reproduced below:
11. In oral evidence Mr Betros agreed that the diagrams in Figure 5 at page 150 of the WDCP suggest taking two known points and extrapolating between them to calculate the ground level (existing). In submissions Mr Pickles argued that the findings in Stamford Properties and Bettar support the 'extrapolation approach' for establishing the ground level (existing), and agrees with Mr Betros that it should be applied in this case. Mr Hanna on the other hand argued that Stamford Properties and Bettar do not apply because in both those cases, the existing building occupies the whole of the site, whereas in the subject matter the building does not.
12. In this case I agree with Mr Betros that the 'extrapolation method' should be applied, based on the approach of selecting the levels located closest to the proposed stair enclosure. This is not inconsistent with the principle applied in Bettar and Stamford Properties, which by necessity had to rely on the footpath levels outside the property boundaries because the buildings, in those cases, occupied the whole of their respective sites. In the subject development proposal the known ground levels identified are also outside the building and also closest to its exterior walls. The fact they are located within the site's property boundaries, as opposed to outside the boundaries and on the footpath, does not derogate from the key selection criteria of closest immediate proximity. In applying the 'extrapolation method' to the subject proposal I accept the mathematical calculation of building height and the exceedance of the height limit, as set out in [29] above.
13. Irrespective of the extent of the breach of the height standard, nothing turns on it in a jurisdictional sense. This application is for the modification of an existing consent under s 4.55(2) of the EPA Act and, therefore, a variation to the height of buildings development standard under the provisions of cl 4.6 of the WLEP is not required. Nevertheless, the height of building development standard is a useful reference point as part of the broader consideration of whether or not the height of the proposed development may be considered reasonable. The environmental impact arising from the height of the proposed development is, in this matter at least, the more fundamental consideration.

View Loss (Contentions 5 and 9)

1. The impact of the proposed development on views and the application of view sharing principles is the main issue in contention between the parties. The property most affected is 30 Gilbert Street, immediately opposite the site and further up the slope rising to the east. Potentially also affected are 32 and 34 Gilbert Street opposite. As well as the submissions of objectors the Court had the benefit of: 1. seeing, at the site view, the current views available from 30 Gilbert Street over the site towards the Sydney Central Business District (CBD); and 2. examining the photomontages depicting the Amended Plans in two views from 30 Gilbert Street and one view from 34 Gilbert Street.
2. In the Joint Report Mr Betros considers the view impacts from 30 Gilbert Street by floor level, and by the extent and content of those views by reference to the photomontages. Mr Betros' assessment, at paragraph 6.3 of the Joint Report, is that the relocated roof terrace, combined with the replacement of the lift structure with a sloping, glazed roof form to the new stair access, minimises the view impacts from surrounding properties. He also maintains (at various paragraphs) that the glazed stairwell was compliant with the height limit, and therefore the "limited degree of view impact" was not unreasonable.
3. In oral evidence, and based on the mathematical calculation of building height that emerged in the hearing (as set out at [29] above), Mr Betros agreed that in fact the stair structure did exceed the height limit by 375mm at the landing of the new stair and for a upper portion of the sloping roof leading to the landing.
4. Mr Somerville advised at paragraph 68 of the Joint Report that the Amended Plans were deemed to impact the city view from the first floor of 30 Gilbert Street, as confirmed by the Figure 10 photomontage. His position was the "The (first) floor of this dwelling is that of a living area, therefore any view loss from this room is not supported" (emphasis added).
5. Mr Somerville (at paragraph 71) reinforces this position, due to the building height being exceeded. He states: "With the works exceeding height, leading to view loss the proposal is not appropriate." In oral evidence Mr Somerville agreed with Mr Pickles that the fact that the stair structure exceeded the height limit did not of itself make it unacceptable, but rather if it exceeded the height limit it could be acceptable provided it "doesn't have any environmental impact". (emphasis added). When pressed on the concept of view sharing and whether there was a "right to retain existing views untrammelled" Mr Somerville conceded that if the development exceeded the height limit it would not be appropriate "if it had a significant impact" (emphasis added).
6. View sharing forms part of one of the objectives of the height of buildings clause found at cl 4.3(1)(a) of the WLEP, which states: (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.
7. The WDCP, at section 2.1 (page 149) sets out the height controls for low density residential development, including the objectives of those controls, as set out below. The height objective relating to views is found at (c) which introduces a reasonableness test. Consistency with the other WDCP height objectives is not in contention. "Objectives (a) To provide appropriate building heights for flat or pitched roof forms for lower density residential accommodation. (b) To ensure the height and scale of development relates to the topography and street character. (c) To ensure the height and scale of development does not unreasonably impact on views enjoyed by neighbouring and nearby properties. (d) To ensure the height and scale of development does not result in unreasonable overshadowing of neighbouring and nearby properties. (e)To minimise loss of views from, and overshadowing of, public places. (f) To ensure that development in excavation areas does not add to the overall visual bulk of the dwelling."
8. The Court was taken to Tenacity Consulting v Warringah (2004) 134 LGERA 23; [2004] NSWLEC 140 (Tenacity). Tenacity deals with view sharing and sets out a four step assessment process to help decide whether or not the view sharing is reasonable. At [23]-[29] of Tenacity Roseth SC sets out the "Principles for view sharing: the impact on neighbours" as follows: "23 The Court heard the evidence of the owners of three properties to the north (42 Griffin Road, 7 Bellevue Place and 8 Bellevue Place), two apartments in Nos 70-72, and two objectors who are not directly affected. I shall concentrate on the impact on 7 Bellevue Place on the grounds that the impact is greatest on this property. The impact is primarily on views. 24 Clause 61 of the LEP states that development is to allow for the reasonable sharing of views. It does not state what is view sharing or when view sharing is reasonable. 25 The notion of view sharing is invoked when a property enjoys existing views and a proposed development would share that view by taking some of it away for its own enjoyment. (Taking it all away cannot be called view sharing, although it may, in some circumstances, be quite reasonable.) To decide whether or not view sharing is reasonable, I have adopted a four-step assessment. 26 The first step is the assessment of views to be affected. Water views are valued more highly than land views. Iconic views (eg of the Opera House, the Harbour Bridge or North Head) are valued more highly than views without icons. Whole views are valued more highly than partial views, eg a water view in which the interface between land and water is visible is more valuable than one in which it is obscured. 27 The second step is to consider from what part of the property the views are obtained. For example the protection of views across side boundaries is more difficult than the protection of views from front and rear boundaries. In addition, whether the view is enjoyed from a standing or sitting position may also be relevant. Sitting views are more difficult to protect than standing views. The expectation to retain side views and sitting views is often unrealistic. 28 The third step is to assess the extent of the impact. This should be done for the whole of the property, not just for the view that is affected. The impact on views from living areas is more significant than from bedrooms or service areas (though views from kitchens are highly valued because people spend so much time in them). The impact may be assessed quantitatively, but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the view loss qualitatively as negligible, minor, moderate, severe or devastating. 29 The fourth step is to assess the reasonableness of the proposal that is causing the impact. A development that complies with all planning controls would be considered more reasonable than one that breaches them. Where an impact on views arises as a result of non-compliance with one or more planning controls, even a moderate impact may be considered unreasonable. With a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours. If the answer to that question is no, then the view impact of a complying development would probably be considered acceptable and the view sharing reasonable."
9. The town planners agreed that as a result of the changes made in the Amended Plans the most affected property in terms of view lost was 30 Gilbert Street. In oral evidence Mr Somerville confirmed he had been provided with floor plans of 32 Gilbert Street showing the living room was on the upper level, and bedrooms on the lower level. He therefore did not expect there to be any significant view loss from that property. He also agreed with Mr Betros that the Amended Plans had largely resolved the view impacts on 34 Gilbert Street (as illustrated in the photomontage at Figure 7 of the Joint Report).
10. Mr Somerville was asked to apply the four 'tests' or steps in Tenacity to the most affected property at 30 Gilbert Street, as illustrated in the photomontages in Figures 10 and 11 of the Joint Report and from his observations taken at the site view at the commencement of the Court proceedings. His oral evidence can be summarised as: 1. Step 1: the affected view from Level 1 (as shown in Figure 10) is a partial view and not the whole view; views are dynamic and the visibility of the features or icons in the view changes depending on where one stands - for example the Harbour Bridge is visible in the image and will remain visible and the Opera House is not visible as it is already obscured by the existing building, but will become visible from a more northerly vantage point on the balcony. 2. Step 2: the view in Figure 10 is taken looking across the front boundary from a standing position outside the kitchen; in the kitchen the focus is on views from a standing position. As well as the standing views from the kitchen, views from the living room adjacent to the kitchen and from the balcony off the living room are also significant views. 3. Step 3: views from the uppermost Level 2 level (shown in Figure 11) are more panoramic, are largely unaffected and view loss from this level is not of concern. From the living area on Level 1, the Opera House and Harbour Bridge views are unaffected; the impact is on the CBD skyline view which Mr Somerville agreed is partially affected. 4. Step 4: the view impact is unreasonable; the CBD skyline view that is lost on Level 1 (as shown in Figure 10) is "quite significant" and the skyline view is a "quality view". Mr Somerville agreed the portion of the view affected by the stairwell structure that protrudes above the height limit is of sky (not CBD buildings), but the height limit is not the starting point for what is reasonable.
11. Mr Betros' evidence in the Joint Report is that view impacts have been minimised and that the view loss is not unreasonable given: 1. "the affected views…form a minor part of the expansive views available from this dwelling"; and 2. acknowledging there will be a partial impact on the CBD skyline at the first floor level, nevertheless the views of the Harbour Bridge will be retained; and 3. the glazed stairwell was compliant with the height limit.
12. Mr Betros did not change his opinion on the reasonableness of the view impacts taking into account the revised building height, calculated in accordance with the extrapolation method, that results in the development exceeding the height limit by 375mm.
13. Based on the evidence of the planners, the photomontages and my own observations on the site view I agree with Mr Betros that the proposed development would not result in an unreasonable impact on views. I agree with the planners that the most affected property is 30 Gilbert Street, with other properties largely unaffected.
14. The impacts on views, as suggested in the WLEP and WDCP need to be considered in the context of view sharing. I have considered the view sharing principles in Tenacity and the evidence of Mr Somerville in applying those principles and I find the view impacts are not unreasonable for the following reasons: 1. The most affected property is 30 Gilbert Street, which enjoys expansive westerly views from both Levels 1 and 2. Level 1 is the more affected of the two levels and Level 2 is largely unaffected. I agree with the town planners that the view affected is a partial view and not the whole view. The views are expansive and include iconic features that form a relatively small portion of the whole view. 2. Level 1 of the affected dwelling contains a living room and kitchen with westerly views over the site and is therefore the primary focus of the view impact assessment. 3. From Level 1 the views include long distance views of the Harbour Bridge (in part) and Opera House (from some vantage points) neither of which are affected by the proposal, and of the CBD skyline (in part) which will be partially affected. There are no significant water views of Sydney Harbour from this level. 4. From the Level 2 master bedroom and living space off that bedroom there are more expansive views than on Level 1, including partial views of Sydney Harbour and unimpeded views of the Opera House, Harbour Bridge and CBD skyline, none of which are affected. 5. The amount of view lost as a result of the development is small. The affected CBD skyline view is a small portion of the much wider view and its partial loss from Level 1 only is not unreasonable given the Harbour Bridge and Opera House views are not affected, on either level.

Visual impact, streetscape and design excellence (Contention 3)

1. The impact of the proposed development visually on the streetscape and whether the protruding enclosure of the stairwell was satisfactory were not contested in the hearing. I find, based on the evidence in the Joint Report and my own views of the site and surrounding streetscapes that the rooftop terrace and the stairwell enclosure, is acceptable in terms of design excellence. It integrates reasonably well with the existing building and does not result in any significant adverse impacts on the surrounding built environment.
2. Visual impacts on the streetscape from the public domain are minimised due to the size of the terrace and its glass balustrading and the setbacks of the terrace and stairwell enclosure from the roof parapet, its minimal height and volumne, and the use of clear glass to clad the stair structure. The discrete nature of the rooftop terrace and stairwell and their minimal impact are also reasonable in terms of the surrounding built context within the visual catchment, which includes other rooftop terraces that are also generally discrete.
3. The rooftop terrace and stair structure does not unreasonably add to the overall visual bulk of the dwelling, nor affect views from or the environmental amenity of public places. It is therefore not inconsistent with the objectives of the height standard in cl 4.3(1)(a) of the WLEP or the objectives of the height controls in section 2.1 of the WDCP.

Visual Privacy (Contention 4)

1. Visual privacy impacts (Contention 4) involve the potential overlooking from the rooftop terrace into the neighbouring property to the west at 25 Princess Street. Mr Somerville at paragraph 57 of the Joint Report suggests that visual privacy seemed to have been resolved by the Amended Plans although, in his opinion, privacy impact photos taken from the roof should be provided to confirm this.
2. Mr Betros suggests in paragraph 55 of the Joint Report that he and Mr Somerville concur ".. in regard to the lack of potential for overlooking impacts." Mr Betros' evidence in the Joint Report was that the setback of the terrace prevents overlooking, that there are no primary windows in the eastern elevation of the neighbouring property and no potential to overlook the rear balconies of that property with the northerly relocation of the terrace. Mr Betros included a photograph (under paragraph 55 of the Joint Report) showing the relationship between the dwelling at 25 Princess Street and the dwelling on the site in support of his assessment. In oral evidence Mr Somerville confirmed that he was satisfied there was no overlooking.
3. Based on this evidence and my own inspection of the location of windows in on the eastern wall of 27 Princess Street I concur with the planners that there are no visual privacy impacts arising from the use of the proposed terrace.

FSR

1. The question of additional FSR was raised by Mr Somerville in the context of the existing dwelling already exceeding the FSR development standard. In his opinion therefore the site was already developed beyond its reasonable limit. Mr Somerville calculated the new stair would generate 5.1m2 of additional GFA, and the total GFA of the building (existing and proposed) would exceed the maximum permissible GFA by 26.2m2 or 10.7%. Mr Somerville's calculation was based on his interpretation of the definition of floor space area in the Dictionary to the WLEP, which states: gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes - (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes - (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement - (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above.
2. Mr Somerville's interpretation does not recognise the exclusion in subclause (d) of "any area for common vertical circulation, such as lifts and stairs" based on his view that the word "common" is to be interpreted as meaning it relates to common property shared between more than one dwelling, such as commonly owned stairs in a residential flat building. Mr Hanna referred the Court to Chami v Lane Cove Council [2015] NSWLEC 1003 (Chami) in support of that interpretation.
3. Mr Betros' interpretation of GFA on the other hand maintains that the new stair access is not included by virtue of subclause (j) of the definition which excludes voids. Mr Betros maintains that the new stairwell is within a void space above the existing stair, and voids are expressly excluded from the definition of gross floor area. Mr Pickles took the Court to Connoisseur Investments Pty Ltd v Sutherland Shire Council [2020] NSWLEC 1181 (Connoisseur Investments) in support of this interpretation. In Connoisseur Investments Horton C (at [85]-[86]) states: "[85] As I understand it, Mr Betros seeks to articulate a method by which certain parts of the stairs, lifts and lift wells are to be included in the calculation of GFA, and his method is consistent with the GFA plan at Drawing 2401 (Exhibit E). [86] As GFA is calculated at 1.4m above a floor, and as it excludes voids above a floor at the level of a storey or storey above, I accept the method articulated by Mr Betros in relation to stairs and lifts because, at the level at which GFA is measured, stairs and lift wells appear as voids, or part voids, and do not constitute floor area that is available to be stood upon or counted."
4. Based on his interpretation of the definition of gross floor area, Mr Betros calculated that the existing dwelling had a FSR of 0.82:1 which equated to 0.08:1 above the 0.74:1 FSR applying to the site. If the stair is included then it would result in an additional GFA of 5m2 which he considers to be negligible in terms of quantity and impact.
5. I accept the approach taken by Mr Betros and consistent with that of Horton C in Connoisseur Investments, that for the portion of the stairwell that is within a void, when measured at a height of 1.4m above the floor, there is no 'floor area' to measure. The purpose of the void space, whether it be to provide an internal spatial volumne, to allow light penetration or to allow for movement between levels via a stair, as in this case, is not relevant to the application of (j) of the definition.
6. In any event whether or not this interpretation of the definition of gross floor area is correct nothing in this matter turns on the numerical compliance with the FSR standard from a jurisdictional point of view. As with the deviation from the building height, a deviation from the FSR development standard does not require a variation under the provisions of cl 4.6 of the WLEP because the application is for a modification of an existing consent. The primary consideration is of the impacts of the additional floor space arising from the modification, which in this case is manifest in the new stair enclosure at the rooftop level. For the reasons set out above, I find those impacts acceptable.
7. Furthermore I am satisfied that the proposed development is not inconsistent with the objectives of the FSR standard at cl 4.4 of the WLEP. For the reasons set out above, the building, as modified, is not incompatible with the bulk, scale, streetscape and desired future character of the locality, the environmental amenity of neighbouring properties are preserved and impacts on the amenity of the locality are minimised.

Decision

1. Having considered the submissions of the objectors, the evidence of the expert town planners and the submissions of the parties, as well as the matters for consideration under s 4.15 of the EPA Act, and taking into account my own observations at the site view, I am satisfied for the reasons set out in this judgment that: 1. The subject modification DA, as amended by the Amended Plans (Exhibit A), is acceptable in terms of its environmental impacts, subject to conditions; and 2. there are no jurisdictional impediments to the granting of consent.

Orders

1. The Court orders: 1. Leave is granted to rely on the Amended Plans in Exhibit A and as described in the conditions in Annexure A. 2. The appeal is upheld. 3. Development Consent is granted to Development Application DA-513/2017/B at 27 Princess Street, Rose Bay for internal alterations to room layouts, the addition of a new stair access with glass enclosure to the roof level and a new 15m2 rooftop terrace with glass balustrade, subject to the agreed conditions in Annexure A. 4. The exhibits, with the exception of Exhibits A and 6 are returned.

Acting Commissioner of the Court Annexure A (196997, pdf)

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