Vicar 28 Pty Ltd v Randwick City Council

"Q: ... Is it your view that the character and/or the streetscape is so sensitive that it cannot accommodate any extension of this building to the east?

A: I'm of the view that extending the built form further to the east would have an impact on the streetscape because of the fact of the elevated nature of that lot and, because it is elongated and runs all the way to that east, it does become quite a predominant form in terms of how you see it as you look up Vicar Street. So from my perspective, the additional 1.2 metres does have an impact from the streetscape point of view because we're adding extra mass and bulk to the street.

Q: That was an answer in relation to the 1.2 and that wasn't my question. I'm trying to work out the starting point. Is it your opinion that the character of the area or the nature of this streetscape is so sensitive that it cannot accept any future extension to the east?

A: Well, yeah, I think it is going to have an impact, so, yes, I do believe that's the case.

Q: It's only additional impact which affects an understanding of the character of the area or the perception of the streetscape. That's the only thing you're concerned about, correct?

Q: Because it's not mass and form how it might affect neighbours?

Q: It's not mass and form as how it might have any amenity impacts on any of the surrounding properties. It's mass and form how it might be perceived so as to deleteriously affect an understanding of the character of the area?

"Q: ... where it is I get into the setback is going to be - the merit assessment of the setback is going to take into account the potential impacts on streetscape?

A: When I look at the first objective, the first dot point of the objectives under section 3.4, it says: 'to determine the street edge and establish or maintain consistent rhythm of street setbacks and front gardens that contribute to the local character'.

Q: I'll pause there for a moment. Obviously, when we accept that this site is unique and we're going into the merit based approach to setbacks, we're not looking to establish a defined street edge or maintain a consistent rhythm because this is the one that's different

"Q: ... Mr Turrisi, there is nothing you raise about inconsistency with the second of the objectives?

Q: ... There's nothing you can take me to in the setback control which dictates how big or where it is to be located by reference to impact on streetscape?

A: Well, no, I disagree ... I accept that the setbacks are not consistent, but it says, "And front gardens that contribute to the local character of the area". It's the front garden component which, in my view, is the issue, because, as I said, we're adding additional bulk and mass to that front portion of the building which, in my view, is in conflict with the objective."

"Q: ... if we treat this as a front setback, you're going to do a merit assessment. That's step 1.

Q: In order to do a merit assessment, you then accept that, because of the unique nature of the site, you're neither seeking to define a street edge or maintain a rhythm of setbacks. That's right?

Q: But what you are doing is then looking at front gardens that contribute to the local character?

Q: Your view is that the front garden as approved contributes to the local character?

A: Well, it's approved, so it's there and it contributes.

Q: The front garden in the modification would continue to contribute to the local character?

A: The landscaping is there and it hasn't changed, that's right, yep.

Q: So the front garden with the building as elongated 1.2m will continue to contribute to the local character?

A: I agree with it in part. If you're just making an assessment as to the square metreage of the landscaping as approved by the square metreage of the landscaping as proposed, it is exactly the same. The difference is that there is now more building which is in front of that landscaping and, as I pointed out on site, that's a basement carpark and the nature of the landscaping on that site doesn't allow for, in my view, significant landscaping, so therefore that landscaping doesn't screen or hide or sort of balance the actual additional bulk being added to the streetscape.

Q: Presumably, if it's a front garden that's having a contribution to the local character, you need to work out whereabouts it is that it's capable of contributing to that local character.

Q: So we start to turn our mind to the locations from which one can see the front garden to understand how it contributes.

Q: If I was to notionally put myself as a pedestrian walking up the eastern footpath of Vicar Street towards the site, you raise no concern about the contribution to the local character by that front garden?

A: No. As I identified on site, the street trees are providing a screen as you walk along that footpath.

Q: ... you raise no concern in relation to the contribution to the local character by reference to a person that is viewing it as a pedestrian walking south on the eastern footpath?

Q: You, similarly, raise no concern about the contribution to the local character by a person walking south on the western footpath?

Q: The full extent that the Court takes into account of the deleterious impact upon the contribution of the front garden to the local character is for vehicles travelling in a northern direction?

Q: In your view, that's enough of a contribution to result in the refusal of the application?

A: I do, and the reason being is basically the road pavement and the road, it is public domain, and because of the position of the built form at the top of the street and its elevated nature, you are going to read that building as you travel up, and it's, in my view, a consideration that's still the public domain."

"Q: ... Did you hear the submission that I made to the Commissioner about the height-depth relationship?

Q: And pointed to the fact that the height‑depth relationship that we see in the apartment design guide is referable to a single aspect of an apartment or, in any event, is referable to any window whichever orientation they are?

Q: Do you agree with me that in a design such as this one where we have both the north‑facing and the east‑facing windows the guide is always complied with?

A: Yes, there's no question that the layout as approved has, you know, that this meets the performance of ADG.

Q: Yes, the suggestion as I understood it from Mr Harker's opening was that the consequence of the extension of building to the east changed it from compliance with the maximum control of 8 metres ... ?

Q: But that might correct in an east‑west direction but do you accept that you would also apply the control in the north‑south direction?

Q: And so there is never a non-compliance with the depth control because you've got access to light and ventilation?

1. Mr Betros, for the Applicant, gave the following evidence in cross examination:

"Q: Do you accept that the open plan area [on DA 102] has at least an acceptable degree of amenity?

Q: Would you go so far as to say it's a good degree of amenity?

Q: Would you go so fa as to say it's a high degree of amenity?

A: ... It's just a subjective matter but, yes, it probably would.

Q: So extension of 1.2 metres to that living area isn't necessarily required to ensure that there is an acceptable or high degree of amenity is there?

A: Well, you can see from the difference in the layouts that the more separate areas of the kitchen, dining and living are, compared to the combined dining living or as the combined dining‑lounge areas, sort of side by side, so you can see the lounge is more spacious, there's better circulation space around the respective areas and it's a better product.

Q: So your answers that you gave me in relation to what you just said in relation to unit 3, do you also adopt that in relation to unit 4 that it's the same?

"Q: So when you say in your joint expert report at paragraph 28 of exhibit 2, you say halfway through that paragraph that, "The proposed three storey form above the podium is recessed and effectively soften by the existing and proposed landscaping"?

Q: When you refer to the existing landscaping are you referring to that tree that we're speaking about?

A: Yes ... the following pages or paragraphs, for example, figures 9 and 10 on page 11, they're also evident on page 9, but probably the best photos are on page 11 of the joint report, they're figures 9 and 10. You will see there is also other street trees which also have the effect of softening the built form, so they're existing and then the proposed trees within the front setback.

Q: The main landscape that you say softens the building is this tree in front of 26?

A: ...... yes, because the built form is more to the right but the street trees on the eastern side also have an effective role as you can see in the photos.. [of Ex 2].

A: .... I don't take any regard to a view from the street from a roadway. I think we differ in that perspective

A: Yes, but it's not a walkway, the roadway is an error in my experience used for an urban design or any planning rationale in terms of how you view a building.

Q: Speaking in terms of the roadway, we stopped halfway down the road on the site inspection ... If we had have continued to look down the road turned around and looked back the view aspect would've been of the site would've been similar?

A: From Coogee Bay Road ... You're in an extremely distant location at that aspect, the building would be very small in your view or perspective.

A: [looking up Vicar Street from Coogee Bay Road] ... It's not a vista that's shown in any planning document, there's no - some councils have views and vistas they want retained, for example, Woollahra have a whole series of images in their DCP. At Randwick, this street, this view aspect has no planning reference whatsoever.

Q: If you just look at Vicar Street in isolation, do you accept that this site is prominent?

(T 29/11/23 p 6 Lines 34-49, p 7Lines 40-50, p 8 Lines 1-38)

"Q: Can you go up to figure 12 [Ex 2] just because it's a [bit] more zoomed in, if that helps at all?

A: That says, yeah, confirms that there are canopy trees existing in the foreground on the site."

1. For the following reasons, I do not consider that there are sufficient grounds for the Court to determine the Modification by way of refusal because of the extension of the built form by 1.2m towards the eastern setback:

(1) Mr Turrisi agreed in cross-examination that the Site is a unique Site, and he is neither seeking to define a street edge, nor does the eastern side of the street maintain a rhythm of setbacks. The Modification is not in breach of the controls in Section 3.4.1 i) of RCDCP 13.

(2) The front landscaping is the same in the Modification as it is in the DA.

(3) Mr Turrisi objected to the front landscaping as in his opinion it no longer screens, or hides, or balances the additional bulk created by the 1.2m increase in the built form to the eastern boundary. However, the Modification is not in breach of Section 3.4.1 iv) as the Modification does not seek to change the landscaping as approved in the DA. The Modification reduces the area of the terrace, but does not reduce the area of landscaping. Further, the street trees and the tree at 26 Vicar Street screen the development, which is not seen by pedestrians, it is seen as a distant view from Coogee Bay Road, and can be seen by a motorist driving south along Vicar Street.

(4) In relation to the application of Section 3.4.1 ii) of RCDCP 13, the area is under transition, and therefore the front setback is to be determined on a merit basis. Mr Turrisi agreed in cross-examination that the built form will only be visible from the public domain - being the middle of the road travelling south. Otherwise it is screened by street plantings (trees) along both sides of Vicar Street. Figure 6 in par [13] above clearly shows that the proposed extension to the DA of 1.2m to the east will barely be visible - this view has been taken from the eastern edge of Vicar Street.

(5) Notwithstanding Council's submissions that the tree on 26 Vicar Street may be removed, I note that there may well be negotiations between 26 and 28 Vicar Street to enable 26 Vicar Street to have vehicular access to its land via the carpark on 28 Vicar Street, and that any removal of the tree on 26 Vicar Street requires Council's consent, making it unlikely that the tree on 26 Vicar Street will be removed in the foreseeable future. The extension of the built form by 1.2m to the east, taking into account the screening of the street trees along both sides of Vicar Street, and the trees on 26 Vicar Street, provides screening of the built form such that the extension of 1.2m does not warrant a refusal of the Modification.

(6) Council relies upon the planning principle in Super Studio v Waverley Council: the acceptability of an impact depends, not only on the extent of the impact, but also on the reasonableness of and necessity for the development that causes it. This planning principle was amended by Senior Commissioner Moore, as he then was, in Davies v Penrith City Council [2013] NSWLEC 1141 as follows:

"[121] I have, therefore, undertaken the internal consultation process for consideration of the establishment of a new planning principle or the revision of an existing planning principle. As a result of that consultation, it is appropriate to refine the published planning principle to delete the words "necessary and/or" so that the revised planning principle will, in future, read:

"Revised planning principle: criteria for assessing impact on neighbouring properties

The following questions are relevant to the assessment of impacts on neighbouring properties:

How does the impact change the amenity of the affected property? How much sunlight, view or privacy is lost as well as how much is retained?

How vulnerable to the impact is the property receiving the impact? Would it require the loss of reasonable development potential to avoid the impact?

Does the impact arise out of poor design? Could the same amount of floor space and amenity be achieved for the proponent while reducing the impact on neighbours?

Does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal?""

(7) Ultimately Council says that Units 3 and 4 already have significant amenity, and a 1.2m bigger living area does not justify the visual intrusion in a prominent block at the top of the hill. As Mr Betros said in evidence:

"Q: So extension of 1.2 metres to that living area isn't necessarily required to ensure that there is an acceptable or high degree of amenity is there?

A: Well, you can see from the difference in the layouts that the more separate areas of the kitchen, dining and living are, compared to the combined dining living or as the combined dining‑lounge areas, sort of side by side, so you can see the lounge is more spacious, there's better circulation space around the respective areas and it's a better product."

(8) I find that it is reasonable to extend the combined kitchen/dining/living room in Units 3 and 4 by 1.2m to enable better circulation space around the respective areas.

(9) Council, supported by Mr Turrisi's evidence, raised an issue of the living area for Units 3 and 4 being apartments that are larger than the minimum required in accordance with objective 4D-2 of the Apartment Design Guide (ADG) (Ex 1, Supplementary Bundle, p 67 (and p 89 of the ADG). The complaint is that with the extension of the built form by 1.2m, the habitable room (combined kitchen/dining/living area) is more than 8m from a window. That is correct if it is measured from the eastern most window, but there is also a northern window. Units 3 and 4 are not single aspect apartments - they are dual aspect apartments. The total dimension from the northern wall to the southern wall of each unit is 7.07m, and nowhere in these two units is the rear of the room more than 8m from access to sunlight. Therefore the design of the units meets the objective of the ADG to ensure that there is access to daylight, and adequate levels of daylight into the combined kitchen/dining/living room of each unit, as confirmed by Mr Turrisi (T 29/11/23 p 15 Lines 4-5).

(10) Finally, Council attempted to 'open' the decision of Acting Commissioner Washington in Vicar 28 Pty Ltd v Randwick City Council [2022] NSWLEC 1200. Mr Harker submitted that in considering the assessment under s 4.15(1), the Court is required to consider the reasons given for the DA. The DA was granted by the Court pursuant to s 34(3) of the LEC Act and therefore only jurisdictional prerequisites were required to be met. Merit was not considered. Council relies on the decision in Vicar 28 Pty Limited v Randwick City Council, part pars [11] and [12] were as follows:

"[11] .... I am satisfied based on the amended architectural and landscape drawings, and the submissions of the parties that the development application as amended represents a reduced FSR and an increased eastern setback, allowing greater landscape to the termination of Vicar St as requested by the Panel.

[12] I have also considered, and am satisfied based on the Design Verification Statement by ASA Architected dated 29 March 2022 and the SEE, that the proposed development meets the relevant design quality principles and standards under the Apartment Design Guide."

(11) Mr Harker noted that the Design Review Panel was making a suggestion to increase the setback and landscape it. That suggestion was taken into consideration as set out above, and Washington AC says that what was proposed adequately provides for that even if it doesn't go as far as the Panel. Council submits that the Modification will eat away into what had been provided, and what was found to be acceptable by Washington AC.

(12) However, in McMillan v Taylor (2023) 257 LGERA 374; [2023] NSWCA 183 (McMillan), the Court of Appeal held, on an appeal by a third party objector against a decision of Commissioner Espinosa pursuant to s 34(3) of the LEC Act, that:

"[51] Under s 34(3) of the Court Act, there are two conditions precedent to the engagement of the power and obligation of the Commissioner to dispose of the proceedings in accordance with the decision of the parties, namely that

(i) an agreement has been reached between the parties as to the terms of a decision, and (ii) the decision is one "that the Court could have made in the proper exercise of its functions". There was no doubt that agreement had been reached between the owners and the Council (the parties) and that the Commissioner was correct to accept the satisfaction of that condition. The dispute focused on whether the decision was one that the Court "could have made". That language is apt to cover jurisdictional constraints on the power of the Court dealing with an appeal from the refusal of a development application. So much has been stated by this Court in earlier authorities and was not challenged.

"[52] Further, it was not in dispute that there were statutory constraints on the power of the Court to grant consent to a development application. These included that (i) the development was not prohibited development; (ii) the development was permissible with consent in accordance with the zoning of the land; (iii) the applicant had the consent of the owner of the land; and (iv) the development did not contravene a requirement of, for example, a development control plan. Each of the cases in this Court to which reference will be made shortly dealt with such circumstances.

"[53] The applicants sought to expand the factors to be addressed. They submitted that the matters for consideration in determining a development application set out in s 4.15(1) of the Planning Act had to be considered by the Commissioner in determining whether the decision of the parties was one which the Court could have made...

[63] Thirdly, where there is an agreement to a particular outcome, following a conciliation conference, the procedural context is important. Thus, at no stage will the Commissioner have undertaken an assessment of the evidence and, indeed, the parties may not have tendered evidence, called witnesses or sought to resolve conflicts by cross-examination. If evidence has been tendered, the parties will not have addressed the Commissioner as to how the evidence should be understood, or its effect. In those circumstances, the suggestion that the Commissioner is required to carry out the evaluative exercise by taking into account those matters which the Court would have been required to take into account had the matter proceeded to a hearing, is implausible. There is no apparent purpose in requiring the Commissioner to consider on a hypothetical basis how the Court "could have" disposed of the proceedings had that been necessary.

[65] For these reasons, the preferred construction of the words in parenthesis in s 34(3) is that they impose on the Commissioner an obligation to be satisfied that there are no jurisdictional constraints on the power of the Court which would preclude an order of the kind reached in the agreement. That is, the language of s 34(3) gives effect to the general law principle and does not impose some broader obligation on the Commissioner."

(13) In applying McMillan I reject any exploration of the 'reasons' for the grant of consent by Washington AC beyond the jurisdictional prerequisites as set out in her judgment.

(14) Having considered the evidence by Mr Betros and Mr Turrisi, and taken into account my own observations on the site view, I have considered the relevant legislation applicable to 'character' and 'streetscape' and find that the evidence does not support a determination of the Modification by way of refusal.

Moving Bedrooms 1 and 2 in Unit 1 from the southern side to the northern side of the building: Issue (2), Contention 2

1. Council's submission is that this part of the Modification should be refused because it does not satisfy the objectives of Section 5.3 Visual Privacy of RCDCP 13 or Section 5.4 Acoustic Privacy of RDCP 13 as a consequence of moving Bedrooms 1 and 2 of Unit 1 next to the main pedestrian accessway into the complex.
2. The plan for Unit 1 is found in Ex B plan no 101 ver 8 Ground Floor Plan. The DA plan is at the bottom of the plan, and the proposed s 4.55 modification is at the top of the plan.
3. The evidence of Mr Turrisi in cross examination on this issue is as follows:

"Q: ... [I]n your view the potential for impact on amenity of the bedrooms for unit 1 is significant enough in and of itself that if that was the only issue in the proceedings you would still be suggesting the refusal of that part of the application?

A: I'm of the view that it should be as approved, yes.

Q: ... Is it correct that what we are endeavouring to do for these two bedrooms is to determine whether the potential for increased amenity by being north facing is outweighed by the potential dis‑amenity of the pedestrian accessway?

Q: ... You accept, don't you, that if we put to one side the pedestrian pathway, the amenity of these two bedrooms would be better if they had a north facing orientation rather than the south facing orientation they have as currently approved?

A: Excluding the passageway, yeah, I would agree with that.

A: I mean, as I said, having a north-facing window to a room is a far better outcome, no question about it.

Q: The fact that there might be the potential for some acoustic privacy impacts during day, or even night-time use of persons walking along the footpath, the amenity benefit that they get would still outweigh that disbenefit. You'd agree with that, wouldn't you?

Q: Do you accept that sleeping normally occurs at night and that during the day the bedroom can be put to alternate uses?

Q: If it's put to an alternate use like a children's playroom, a teenage retreat or a parent's escape, it's still, nevertheless, being used for the purposes of a bedroom. You agree with that, don't you?

Q: ... [A]t any time it's not being used for the purposes of sleeping, the dual use bedroom has increased amenity because of its north‑facing windows.

Q: The task that you're engaging in is a comparison between amenity between approved as opposed to modified. That's your task?

A: I've made the assessment as to basically ‑ yeah, I believe that the bedrooms on the northern side as bedrooms will have a poorer level of amenity, yep.

Q: It's a lesser level of amenity that those that have been approved on the south. That's your view, and you go one step further, I think, to say if you were just assessing the bedrooms on the north side you would say their amenity is so poor that they shouldn't be approved?

Q: You recognise, don't you that pedestrian accessways to small residential developments are frequently in close proximity to bedrooms?

A: They can be, but from a design perspective you look at opportunities to minimise impact ...

Q: paragraph 64 you say, "To achieve an appropriate level of visual privacy, greater attention needs to be provided for the landscaping in front of the windows and with those windows having a sill height of 1.2 this is not, in my opinion, an appropriate amenity outcome". So we've got bedrooms to a window, which we can talk about sill heights, to a landscape bed, to a palisade fence and then the pathway.

"Q: It would be fair to say that your concern is more acoustic privacy rather than visual privacy, isn't it?

A: No, no, it's visual as well. That's why point 64 is separate to 65, and that's why in point 9 I make reference to privacy in terms of unit 1, and that was the issue, because the actual landscaping at the front of that window at the sill height of 1.2 wouldn't prevent people walking along that pathway to be able to look into those rooms, so there's, from my view, a potential visual privacy issue and interface from that common area into those rooms.

Q: What's the visual privacy concern you have about someone sleeping in a bedroom behind landscaping and a palisade fence where they're in control of their own privacy?

A: But the issue is that it comes back from a design point of view, and that the reality is that if the blinds are up, and even if someone is using that bedroom and it's not for the purpose of sleeping, but for any other purpose, then there is a direct privacy issue."

1. The evidence of Mr Betros in cross examination on this issue is as follows:

"Q: Could you please go to plan DA105, which is the north elevation?

Q: Can you look at the approved plan and the two windows to what was the hallway?

Q: ... what's the height of the sill for those windows?

Q: The modification application proposes lowering the sill height; is that right?

Q: In terms of the 1200, that increases, you say significantly, the potential for people looking into the bedroom as opposed to ‑ and seeing more than at 1500 sill?

Q: The reason you're making those suggestions is, do you accept, that there is a concern about visual privacy to these two bedrooms?

A: Yes. Sorry, notwithstanding you can have the blinds, obviously, at night, but I think in terms of balancing aspects these are quite elevated above the street. The two bedrooms are actually immediately opposite the large canopy tree number 26, so these bedrooms will enjoy nice, you know, sunlit, open, northerly aspect to vegetation, and then it's just ensuring that there's a suitable amount of buffer from the pathway that might be used occasionally.

Q: You heard questions from Mr Hemmings to Mr Turrisi about the dual‑purpose use of bedrooms. If somebody wanted to ensure privacy while they used their bedroom for that dual purpose use during the day, they'd close the blinds, wouldn't they?

Q: That would negate the benefits that you're trying to provide; is that right?

A: No. You've got the choice, though, and in my opinion probably, and given the..(not transcribable)..throughout the units where they're more likely to enter by car or often during by car, there's very minimal impacts, in my opinion, of pedestrian movement on a private walkway for three units. So if I was in those spaces working from home or other activities Mr Hemmings outlined, they'd probably more or less stay open.

Q: ... In terms of the ADG ... have you had regard to objective 3F-2 which deals with visual privacy...?

Q: You accept that that suggests that bedrooms should be separated from gallery access and other open circulation areas?

Q: Do you accept that that should extend so that it applies to the access pedestrian pathway?

A: If I can say something about the approved scheme, if possible.

A: If you enter into unit 1 and you turn right from the hallway to either bedroom, and then you close the door and you look south, all you would have in the distance is the fence in the distance, because the fence goes to the top of the window. There would be minimal, if any, natural light. There would be no sunlight, obviously, and no aspect whatsoever in those two bedrooms.

Q: The bedroom looking out onto a fence is not uncommon in the R3 zone, is it?

1. For the following reasons, I do not consider that there are sufficient grounds for the Court to determine the Modification by way of refusal because of the movement of Bedrooms 1 and 2 in Unit 1 from the southside of the building to the northside of the building, with the caveat that I shall require acoustic treatment on Windows W15 and W16 in Bedrooms 1 and 2 of Unit 1:

(1) Objective 3F-2 of the ADG provides: "Site and building design elements increase privacy without compromising access to light and air and balance outlook and views from habitable rooms and private open space", and the relevant design guidance is "Bedrooms, living spaces and other habitable rooms should be separated from gallery access and other open circulation space by the apartment's service areas".

(2) I prefer the evidence of Mr Betros to that of Mr Turrisi, in that:

• "Yes. Sorry, notwithstanding you can have the blinds, obviously, at night, but I think in terms of balancing aspects these are quite elevated above the street. The two bedrooms are actually immediately opposite the large canopy tree number 26, so these bedrooms will enjoy nice, you know, sunlit, open, northerly aspect to vegetation, and then it's just ensuring that there's a suitable amount of buffer from the pathway that might be used occasionally." (T 28/11/23 p 36 Lines 21 - 25).
• "If you enter into unit 1 and you turn right from the hallway to either bedroom, and then you close the door and you look south, all you would have in the distance is the fence in the distance, because the fence goes to the top of the window. There would be minimal, if any, natural light. There would be no sunlight, obviously, and no aspect whatsoever in those two bedrooms." (T 28/11/2023 p 39 Lines 21 - 24)
• "... the proposal is far superior". (T 28/11/2023 p 39 Line 30).

(1) In the DA the windows of Bedrooms 1 and 2 of Unit 2 face the dividing fence with the development along Carr Street. The ground level on the adjoining block in Carr Street is significantly higher than the ground level at 28 Vicar Street - that is why the outlook is simply to a boundary fence, with bamboo for landscaping. However, if Bedroom 1 and 2 in Unit 2 are 'flipped' the outlook is light and airy with an aspect of overlooking the significant tree in 26 Vicar Street. Any privacy issue can be resolved by the occupant of Unit 1 using window coverings, and there are a plethora of alternatives on the market.

(2) There was little point in giving the bathrooms limited light when facing north - there is much more point in giving the bedrooms better light, and the aspect of a view of the significant tree at No 26 Vicar Street.

(3) Acoustic Privacy: Council relies upon Section 5.4 of RCDCP 13 which has the following objectives:

• "To ensure a high level of amenity by providing for reasonable level of acoustic privacy for dwellings and neighbouring properties."
• "To ensure dwellings are designed so that its occupants enjoy acoustic privacy, whilst maintaining the existing level of privacy of adjoining and nearby properties."
• "To ensure dwellings are designed to minimise impacts from significant exterior noise sources such as arterial roads, flight paths, industries and ports."
• "To design buildings with adequate separation within the development and from adjoining properties."

(4) Whilst on any measure, the noise created by the occupiers and visitors to three units in a four unit complex could not be considered significant, especially when the development has an underground carpark and internal lift from the carpark, but I do consider noise could create a problem for a shift worker. There are many shift workers in our society: Police, Hospital doctors/nurses and staff; restaurants and the entertainment industry. Many of these workers require sleep during the day. With that in mind, and noting the short distance from the pedestrian walkway to the windows in the bedrooms, I consider that if a condition of consent is imposed addressing the possible acoustic impact, such as double glazing on windows numbered W15 and W16 for Bedroom 1 and 2 in Unit 1, on Asa Architects Ground Floor Plan No DA 01 Rev 08, the proposed modification would be acceptable.

(5) In relation to visual and acoustic privacy I find that the Modification meets the objectives of Sections 5.3 and 5.4 of RCDCP 13 of ensuring that the development is designed so that its occupants enjoy visual and acoustic privacy, whilst maintaining the existing level of privacy of adjoining and nearby properties.

1. The parties have dealt with s 4.55(2) subsections (b), (c), and (d) above. The parties agree that the Modification is substantially the same development as the DA in accordance with s 4.55(2)(a), and in this regard apply the decision of Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85 (Arrage). Preston CJ found in Arrage:

"[17] I reject ground 1(a) of the appeal for three sets of reasons.

[18] The first set of reasons is that Mr Arrage's argument on this ground is founded on an unsound basis. The "test" the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act. Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31].

[19] Bignold J did suggest in Moto Projects that the comparative exercise required by the former s 96(2), now s 4.55(2), of the EPA Act involves a comparison of the proposed modified development and the originally approved development "in their proper contexts (including the circumstances in which the development consent was granted)", but this did not substitute a different or additional test for the test imposed by the statutory provision giving the power to modify a development consent. The test remained that stated in the statutory provision that the modified development "is substantially the same development" as the originally approved development.

[20] Accordingly, the Commissioner was not bound by the terms of s 4.55(2)(a) to compare the modified development and the originally approved development "in their proper contexts (including the circumstances in which the development consent was granted)". Insofar as the Commissioner might be seen not to have given consideration to the circumstances in which the development consent was granted, that did not involve him failing to apply the correct test: he was not obliged in law to do so.

[21] Even clearer than this conclusion that the Commissioner was not obliged in law to apply the dicta of Bignold J in Moto Projects, is that the Commissioner was not obliged to apply the dicta of Commissioner Gray in the Ahmad case. Believing that it was a relevant inquiry to identify the circumstances in which the development consent was granted, the Commissioner in Ahmad, endeavoured to do so by having regard to the facts of that case. There, the original consent had been granted by the Court in accordance with the parties' agreement under s 34(3)(a) of the Court Act. The Commissioner unsurprisingly found little assistance in the Court's formulaic and perfunctory judgment granting consent in accordance with the parties' agreement.

[22] The Commissioner in the present case was not obliged "to adopt the reasoning" of the Commissioner in Ahmad, as Mr Arrage had submitted in the Court below. The dicta of the Commissioner in Ahmad did not, and could not, impose any "test" for undertaking the comparative exercise required by s 4.55(2)(a) of the EPA Act.

[23] The second set of reasons for rejecting ground 1(a) of the appeal is that Mr Arrage's submission in the Court below, that "no essential element of the development consent is readily identifiable from the circumstances of the grant of the development consent by the Court", was unappealing sophistry. Moto Projects had suggested that there needs to be a comparison of the material and essential elements of the originally approved and the modified development in order to assess whether the modified development is substantially the same as the originally approved development. Mr Arrage believed that if no essential element of the originally approved development could be identified, then there could be no basis for reaching a conclusion that a modified element is not substantially the same development as the originally approved development. With this belief, Mr Arrage argued before the Commissioner that no essential element of the original development consent could be readily identified from the circumstances of the grant of the development consent by the Court. But this argument was fallacious.

[24] First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) is between two developments: the development as modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16].

[25] Second, the essential elements are not to be identified "from the circumstances of the grant of the development consent"; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development.

[26] The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence". That interpretation of the word "substantially" was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55].

[27] This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.

[28] That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17].

[29] But if that way is selected, then the material and essential features or elements are to be identified from the originally approved and modified developments, not from the circumstances in which the original development consent was granted.

[30] Third, the argument is self-fulfilling. The circumstances of the grant of the development consent in this case are that the consent was granted in accordance with the parties' agreement under s 34(3)(a) of the Court Act. There was no contested hearing or adjudication of the appeal against the Council's refusal of the development application for the originally approved development. In these circumstances, there will be no reasons given as to the merits of granting consent to the originally approved development, only reasons as to why the decision is one that can be made in the proper exercise of the Court's functions. Hence, it will not be possible to identify any essential element from the circumstances of the grant of consent.

[31] Fourth, it reverses the statutory test and the onus of proof to establish that test required by s 4.55(2) of the EPA Act. Under s 4.55(2), the consent authority must form the positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development. Mr Arrage bore the onus of persuading the Commissioner to form this positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development: Vacik Pty Ltd v Penrith City Council at p 2, North Sydney Council v Michael Standley & Associates Pty Ltd at 475 and 481 and Trinvass Pty Ltd v The Council of the City of Sydney [2018] NSWLEC 77 at [22].

[32] Mr Arrage could not discharge this onus by showing that there were no essential elements identifiable from the circumstances of the grant of development consent by the Court and therefore nothing on which the Commissioner could rely to form the opinion that the Commissioner did reach that the modified development is not substantially the same as the originally approved development. To argue that the Commissioner could not form the negative opinion of satisfaction does not establish a basis for the Commissioner to form the positive opinion of satisfaction that was required by s 4.55(2)(a).

[33] The third set of reasons for rejecting ground 1(a) is that the Commissioner did apply what Mr Arrage argued is the correct test suggested by Bignold J in Moto Projects. As the Council submitted, the Commissioner undertook the comparative exercise required by identifying and comparing the material and essential elements, both quantitative and qualitative, of the modified development and the originally approved development. No misdirection is revealed in the comparative exercise undertaken by the Commissioner."

(1) The quantitative changes to the DA proposed by the Modification are:

(a) Changes to the Basement subject to condition on parking allocation;

(b) Extension to the north of the built form of Bedroom 1 in Unit 2, and additional study to the layout;

(c) Allocation of Unit 2 as the affordable housing unit;

(d) Extension to the west of the built form of Bedroom 1 in Units 3 (first floor) and 4 (second floor).

(e) Relocation of window in Bedroom 1 of Units 3 (first floor) and 4 (second floor) from west to north aspect.

(f) Deletion of applicability of condition 29(c) to northern aspect of first and second floor (not ground floor).

(g) Addition of carpark exhaust vent on roof.

(h) Extension of the built form by 1.2m to the east, to the benefit of Units 1, 3 and 4.

(i) Reduction in Terrace to Unit 1, to maintain the same level of landscaping as in the DA.

(j) Moving Bedroom 1 and 2 in Unit 1 from southern side to northern side.

(a) Improved circulation to the combined kitchen/dining/living area in Units 1, 3 and 4.

(b) Improved light, sunshine and aspect to Unit 1 by moving Bedrooms 1 and 2 from the southern side of the building to the northern side of the build.

(c) Additional study layout in Bedroom 1 of Unit 2

(d) Addition space to the west of Bedroom 1 in Units 3 and 4.

(3) I find that the Modification is substantially the same as the DA pursuant to s 4.55(2)(a) of the EPA Act.

1. On 25 August 2023 the Court granted leave to the Applicant to file amended plans, which became Ex B. The Applicant's amended Landscape plans became Ex C. The Court has no record of the amended plans in Ex B and C being uploaded to the NSW Planning Portal.
2. Subject to receipt of updated Conditions of Consent, I shall uphold the appeal and approve the Modification in accordance with s 4.55(2) of the EPA and s 39(2) of the LEC Act.
3. The Court directs:

(1) By 10 February 2024 the parties are to confer and if possible agree on the condition of consent to ameliorate the acoustic impact on windows W15 and W16 in Bedrooms 1 and 2 of Unit 1 on Asa Architects Ground Floor Plan No DA 01 Rev 08, which are to reflect the findings of this judgment, and file the agreed conditions for the Modification, and a consolidated set of Conditions.

(1) If the parties are not able to agree on the conditions of consent by 10 February 2024, each party is to file in Court and serve on the other party the party's version of the conditions of consent.

(2) The Applicant is to upload the amended plans in Exhibits B and C to the NSW Planning Portal, and advise the Court of the relevant reference number, within 14 days.