Blanc Black Projects Pty Limited v Willoughby City Council

[2024] NSWLEC 1176

Land and Environment Court

New South Wales

Medium Neutral Citation:

Blanc Black Projects Pty Limited v Willoughby City Council [2024] NSWLEC 1176

Hearing dates:

26-27 March 2024

Date of orders:

12 April 2024

Decision date:

12 April 2024

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The modification application is approved.

(2) Development Consent No. DA-2021/90 is modified in the terms in Annexure A.

(3) Development Consent No. DA-2021/90 as modified by the Court is Annexure B.

(4) All exhibits are returned, except for Exhibits A, B and H.

Catchwords:

MODIFICATION APPLICATION – whether substantially the same development – the floor space ratio standard exceeded – the height standard is exceeded – whether the bulk and scale is acceptable – whether development as modified will establish undesirable precedent

Legislation Cited:

Architects Act 1921

Architects Act 2003

Environmental Planning and Assessment Act 1979, ss 1.4, 4.15, 4.55, 102

Environmental Planning and Assessment Regulation 2021, ss 4, 69, 102

State Environmental Planning Policy (Housing) 2021, Sch 7A, s 8, Sch 9, Principles 1, 2, Ch 4

State Environmental Planning Policy (Transport and Infrastructure) 2021, s 2.122

State Environmental Planning Policy Amendment (Housing) 2023, s 3

State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development, Sch 1

Willoughby Local Environmental Plan 2012, cll 4.3, 4.4, 4.6,

Cases Cited:

Arrage v Inner West Council [2018] NSWLEC 1628

Arrage v Inner West Council [2019] NSWLEC 85

Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act1995 (2002) 121 LGERA 101; [2002] NSWLEC 75

Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163

Parkway Accommodation Pty Ltd v Newcastle City Council [2012] NSWLEC 1238

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65

Blanc Black Projects Pty Limited v Willoughby City Council [2022] NSWLEC 1135

Texts Cited:

Australian Building Codes Board, Building Code of Australia

Australian Building Codes Board, National Construction Code

NSW Department of Planning and Environment, Apartment Design Guide

Willoughby Community Participation Plan

Willoughby Development Control Plan 2006

Willoughby Development Control Plan 2023

Category:

Principal judgment

Parties:

Blanc Black Projects Pty Limited (Applicant)
Willoughby City Council (Respondent)

Representation:

Counsel:
A Pearman (Applicant)
D Robertson (Respondent)

Solicitors:
BCP Lawyers & Consultants (Applicant)
Maddocks (Respondent)

File Number(s):

2023/127538

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Eastern Valley Way, on Sydney’s north shore, falls steeply in the vicinity of Sailors Bay Creek, before rising again in the direction of Castlecrag further north.

2. On the western side of Eastern Valley Way, close to Sailors Bay Creek, a residential flat building is under construction, consent for which was granted by the Court on 17 March 2022.

3. On 20 April 2023, the Applicant in these proceedings, Blanc Black Projects Pty Limited, filed modification application DA-2021/90/A with the Court, pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act), seeking to modify the consent granted by the Court for the demolition of existing buildings and construction of a new residential flat building comprising 11 apartments over basement car parking on the land described as Lots 1 and 2 in DP 554171 and known as 58-60 Eastern Valley Way, Northbridge (the original consent).

4. The original consent derives from a decision of the Court in Blanc Black Projects Pty Limited v Willoughby City Council [2022] NSWLEC 1135

5. The modification application seeks to modify the original consent as follows:

1. Minor internal and external alterations relating to Unit 3.02 to increase the internal area and amend from two bedrooms to three bedrooms.

2. Internal alterations to provide storage in units.

3. Deletion of Condition 3(a) which relates to the removal of 7 basement car parking spaces within the basement, and revisions to the basement to allow for a total of 20 car parking spaces, deleting a car stacker.

6. The modification application was amended by Notice of Motion on 13 July 2023 (Exhibit H), comprising the following amended plans and other documents:

1. Shadow diagrams Drawings Nos DA-2601/1 Revision 1, DA-2602/1 Revision 1 and DA-2603/1 Revision 1 prepared by 3EM Architects dated 2 June 2023.

2. Willoughby Council Application Form dated 14 June 2023.

3. Willoughby Council checklist dated 14 June 2023.

4. CIV Cost Estimate prepared by Mitchell Brandtman dated 5 June 2023.

5. Land Owner’s Consent.

6. Design Verification Statement prepared by 3EM Architects dated 2 June 2023.

7. S4.55 Statement prepared by 3EM Architects dated 2 June 2023.

8. BASIX Certificate No.117303M_03.

9. Statement of Environmental Effects prepared by Ethos Urban dated 8 June 2023.

10. Stormwater Statement prepared by Telford Civil dated 1 June 2023.

7. The modification application was notified to adjoining and nearby properties from 18 July 2023 to 8 August 2023 in accordance with the Willoughby Community Participation Plan, in response to which no objections were received.

8. The amended modification application was once again amended by Notice of Motion filed on 27 September 2023, and was notified to adjoining and nearby properties from 26 October 2023 to 23 November 2023. I am advised that, once again, no objections were received.

9. At the commencement of the hearing, the Applicant sought leave, unopposed, to rely upon two architectural plans that have the effect of amending the modification application in the following ways:

1. Relocation of one bicycle parking from the basement to the ground floor, for use by visitors.

2. Amendments to the waste store in the basement.

10. The plans were consolidated in the architectural plan set marked Exhibit B.

The site and its context

11. The site has a total area of 1,560m², is located in the R3 Medium Density Residential zone according to the Willoughby Local Environmental Plan 2012 (WLEP), and adjoins land zoned RE1 Public Recreation to the north of the site.

12. To the site’s immediate north is Sailor’s Bay Creek, and its riparian zone.

13. Further north is a public park, known as Market Garden Park (the Park), that rises towards multi-dwelling development some distance away.

14. The Court had the opportunity to observe the above at the commencement of proceedings when, at the onsite view, the Court was taken to certain vantage points on the western and eastern sides of Eastern Valley Way, and in the Park to the north of the site.

15. The Court was also taken onto the site, that is currently a construction site, and observed:

1. The basement configuration which is largely complete, but for internal walls, and certain finishes and fittings.

2. The location of scaffolding in respect of concrete slabs that are clearly poured and cured, but for the upper most slab that forms the roof of the original consent which is set out in formwork, but is yet to be poured.

Expert evidence

16. The contentions, as expressed in the Amended Statement of Facts and Contentions (ASOFAC) filed with the Court on 3 November 2023 (Exhibit 1), are such that the parties identified experts in planning and traffic engineering that were directed by the Court to confer and prepare joint expert reports.

17. The traffic experts, Ms Clare Woods, on behalf of the Respondent, and Mr Bernard Lo on behalf of the Applicant, conferred in the preparation of a joint expert report filed with the Court on 5 March 2024 (Exhibit 4) in which the experts are agreed appropriate bicycle parking was provided.

18. The planning experts, Mr Stephen Gouge on behalf of the Applicant and Mr Peter Wells, on behalf of the Respondent, conferred in the preparation of a joint expert report marked Exhibit 3.

19. I record here that the WLEP was amended sometime after the original consent, and before the hearing. However, the Respondent submits that the amendments to the WLEP are of no consequence to the modification application before the Court.

20. Likewise, the Willoughby Development Control Plan 2006 (WDCP 2006) was repealed by the Willoughby Development Control Plan 2023 (WDCP 2023), which took effect on 4 October 2023, with no savings provision. The Respondent submits that as the WDCP 2006 was in effect at the time of the original consent, it is the WDCP 2006 that applies in the circumstances of this case in accordance with s 4.15(1)(a)(iii) of the EPA Act.

Whether development is substantially the same.

21. Section 4.55 of the EPA Act relevantly provides:

…

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

…

22. In considering whether the Court can be satisfied that the development to which the consent as proposed to be modified is substantially the same development as the development for which consent was originally granted, the Court has commonly held that it is insufficient to characterise development as substantially the same solely on the basis that the use is identical.

23. Instead, a comparative task is required. Such a task should involve a qualitative and quantitative appreciation of the development that is proposed to be modified, and the development for which consent was originally granted, including the circumstances in which development consent was granted.

24. Undertaking only a quantitative evaluation of the modification application, compared to the original consent, absent any qualitative assessment, will be legally flawed, for reasons shown by Bignold J in Moto Projects (No 2) Pty Ltd V North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280, at [52].

25. Furthermore, the quantitative and qualitative comparison requires an understanding of the essential features or components of the originally approved and modified developments in order to assess whether the modified development is substantially the same as the originally approved development (Arrage v Inner West Council [2019] NSWLEC 85 (Arrage), at [25]).

26. In the circumstances of this case, the Respondent contends that any quantitative and qualitative assessment must consider the quantum and effect of three essential features or elements on which the original consent was founded.

27. Firstly, the Applicant seeks to increase the gross floor area (GFA) of the development that gives rise to the floor space ratio (FSR) permitted on the site. The parties agree that the modification application would convert areas previously excluded from FSR into areas that must be included in the calculation of FSR; resulting in a FSR expressed as 0.96:1, which exceeds that the FSR standard permitted by cl 4.4 of the WLEP of 0.9:1.

28. Secondly, the Applicant seeks to increase the height of the building beyond the height approved by the original consent. As height is a factor in the bulk and scale of any development, a modification of the height of the building is a change to an element regarded as essential at the time of the original consent.

29. Thirdly, the alterations propose to increase the appearance of bulk and scale when viewed from Eastern Valley Way that were essential elements considered at the time of the original consent.

30. In essence, the Respondent submits that that the height, FSR, bulk and scale of the development were all essential elements and features of the original consent that are now sought by the Applicant to be, in the words of Mr Wells, “walked back” via the mechanism of modification that does not require the rigour of a written request of a kind found in cl 4.6 of the WLEP to argue the grounds on which such matters would otherwise have been assessed, if in contest at the time of the original consent.

31. In support of this position, the Respondent relies on the chronology of decisions evident in the various applications made by the Applicant to the Respondent, or to the Court.

32. To this end, the Respondent relies on agreement recorded in the joint expert report prepared in support of the proceedings resulting in the original consent in which the experts agree that the re-allocation of car parking spaces in the basement to unit storage achieves the required FSR and so resolves the contention (Exhibit 2, Tab 7). It is this agreement I understand Mr Wells believes is being ‘walked back’.

33. The Applicant meets this assertion by relying on Parkway Accommodation Pty Ltd v Newcastle City Council [2012] NSWLEC 1238 (Parkway) to show there is no legal barrier to lodging an application such as this, even in circumstances where an applicant benefits from a prior consent that could have been, but was not, appealed should the applicant have wished at the time to have ‘perfected the consent’, rather than now re-agitating certain of those matters in a subsequent application.

The FSR is exceeded

34. The modification application seeks to increase the floor space of the development in two areas;

1. Firstly, by extending the floor area of Unit 3.02 some distance to the north into an area that, in the original consent, was covered open space, thereby adding an additional 46m² of floor space.

2. Secondly, by converting storage space in the basement to four additional car parking spaces which exceeds the Respondent’s car parking requirements, and so contributes an area of 54m² of floor space.

35. The additional floor space has two consequences the Respondent considers unacceptable.

36. Firstly, the increase in floor space results in an exceedance of the FSR of the development as proposed to be modified from the FSR standard of 0.9:1 at cl 4.4. What flows from this is a failure to comply with objective (1)(c) and (d) of the FSR standard at cl 4.4 that seek to minimise the impacts of new development on surrounding properties in certain terms, and to manage the bulk and scale of that development to suit the land use purpose and objectives of the zone.

37. Secondly, the increase in floor area to the uppermost level of the development does not comply with the controls at Part D2 of the WDCP 2006 (Exhibit 2, Tab 26A) that requires the floor plate at the fourth storey not to exceed 60% of the area of the floor below.

38. Mr Wells views the uppermost level, not in terms of an extension of 1.22m of the roof form from that in the original consent, but instead, in terms of the increase of internal floor space that extends 3m to the north.

39. Mr Gouge’s evidence is that the topography, allotment location and proximity to substantial, mature trees in the Sailors Bay Creek Reserve render the additional floor space at the uppermost level virtually imperceptible from the public domain.

40. The Respondent submits that, contrary to Mr Gouge’s evidence, the decision to expand the size and number of bedrooms in Unit 3.02, from two bedrooms to three bedrooms, is not a natural consequence of the design development process, but is wilful and profit-driven, and absent reasonable environmental planning grounds.

41. The parties agree that the basement perimeter, layout and circulation is not proposed to be altered as a result of the modification, other than the re-allocation of area to four car parking spaces that were previously identified as unit storage.

42. While the Applicant submits that more car parking cannot be a bad thing for a site located 100m from a bus stop, I note that is not a view universally held by those who advance the theory commonly known as ‘induced demand’; which is, at is most simple, the inevitable result of increasing the supply of roads, or road-based infrastructure, which builds an expectation for more of the same, and sees people adjust their own practices and habits to an ever-increasing supply of that thing.

43. In fact, the Respondent identifies a reduction in the car parking rates between the WDCP 2006 and WDCP 2023, indicative of a desire to reduce, and not expand car use.

44. That said, I note a letter from Transport for NSW dated 16 August 2023 confirms in writing that when the provisions of s 2.122 of State Environmental Planning Policy (Transport and Infrastructure) 2021 are considered, the development as proposed to be modified does not give rise to objections. Those provisions deal with traffic generating development including, relevantly, the size or capacity of a site with direct vehicular access to a road, the efficiency of movement of people and any potential traffic safety, road congestion or parking implications.

45. Likewise, the ASOFAC does not identify additional traffic impacts such as excessive queueing or waiting times, entry or exit procedures or clearances, or traffic generated by development on a classified road to be contentious.

46. In respect of the additional GFA proposed to Unit 3.02, I do not place much weight on the terms of agreements arrived at in proceedings that precede those before me now. While the Court may have regard to the circumstances in which development consent was granted, I do not understand that to extend to a fresh consideration of the myriad negotiations that inevitably occur between experts in arriving at positions that may or may not have informed the circumstances in which development consent was granted.

47. It is the consent as originally granted that forms the basis of an assessment of whether the development as proposed to be modified is substantially the same. A comparison of the proposed modified development and the originally approved development should occur in their proper contexts, including the circumstances in which development consent was granted, does not substitute a different or additional test to the test imposed by the statutory provision giving the power to modify a development consent (Arrage at [19]).

48. Instead, I regard an assessment of the impact of the additional GFA now in contest before the Court to be the primary task required of me, and not the terms of an agreement between two experts, who are not both the same experts now assisting the Court.

49. Mr Wells’ opinion is, in essence, that seeking additional floor space now seeks to ‘escape’ the jurisdictional requirement that would have been required of the Applicant, had the issue been exposed to the scrutiny demanded by cl 4.6 of the WLEP.

35. The Court has consistently held that the power to modify a consent that breaches a development standard is a complete source of power, and so cl 4.6 of the WLEP does not apply to modification applications: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233; [2015] NSWLEC 65, at [31].

36. However, to the extent the Respondent contends the burden falls to the Applicant to demonstrate compliance with the FSR standard is unreasonable or unnecessary, and that sufficient environmental grounds must be established, Mr Gouge sets out the same at pars 66-67 of the joint expert report.

37. Compliance with the FSR standard is said to be unreasonable or unnecessary because the objectives at cl 4.4 are achieved for the following reasons:

“The proposed development is suitable to the Site’s unique setting, sloping topography and flooding hazard and the specific design response results in a neglectable impact when viewed from the surrounding area, particularly Eastern Valley Way and Sailors Bay Creek (where accessible) and Willoughby Market Garden Park;

The exceedance of FSR is confined to the basement for car parking and minor extent to level 3 that has been demonstrated to have no undue impacts to the road network;

The proposal is not located in the vicinity of any items of heritage and will not impact on the understanding of heritage items located away from the Site.”

53. Environmental planning grounds advanced by Mr Gouge are as follows:

“The scale and form of the building is compatible with the existing infill development as well as sites within the precinct that have been redeveloped. The proposed FSR exceedance within the basement does not change this compatibility.

The site is of sufficient size (i.e. compliant size and width) to support the additional GFA within the basement.

The exceedance of GFA does not extend the scale of the building above ground.

The proposed landscaped area complies with the WDCP provisions.

The proposed built form is compatible with the scale, bulk and overall street presentation of existing development.

The proposal is compatible with both the existing built form as well as likely future built form (in order to be compatible, the bulk and scale does not necessarily need to be same)

Does not exacerbate impacts on views to any of the adjoining properties due to its siting, design, and location.”

54. Having regard to the plans the subject of the original consent, I accept that the additional GFA that results in an exceedance of the FSR standard does not materially change the development the subject of the original consent.

55. The additional four car parking spaces in the basement does not contribute in either a visual sense, or more significantly, in my view, in terms of any impact on the road network. The storage that was located in the basement is now shown in each unit above ground, where storage is more accessible and convenient and likely to be in joinery and not in open mesh cages as is often the case. The experts agree the volume of storage is sufficient.

56. In terms of the additional floor space at Level 3, I accept Mr Gouge’s evidence that it is more appropriate to consider the additional bulk at this level to be measured by reference to the roof overhang and not the glazing line that is setback from the roof overhang. This is because, when viewed from the street, the angle of sight does not afford a view to the glazing line. For all intents and purposes, the glazing line is unseen from Eastern Valley Way and, because of its setback, unseen from the Park to the north of Sailor’s Bay Creek Reserve.

57. Instead, the broad blade column would be seen from both locations, as would the roof overhang. The open void to the south of the broad blade column in the original consent is proposed to be enclosed by a new window, with a further columnar extension proposed further to the north of the broad blade column. Again, due to the angle of sight from Eastern Valley Way, it is likely this columnar extension will be masked by the broad blade column.

The height is exceeded

58. Put simply, the Respondent contends the height of the extension at Level 3 is excessive.

59. However, in their oral evidence the planning experts agree that the height exceedance of the built form as proposed to be modified is different to that agreed earlier in the joint planning report.

60. The exceedance in the joint planning report is described as 1.89m above the height standard of 12m.

61. After conferring further in oral evidence, the experts agree the exceedance is more accurately described as 1.849m on the north-western most corner of the development, and 1.79m on the north-eastern most corner of the development.

62. The effect of this exceedance is development above that of the original consent by a dimension of 359mm to the north western most corner of the development, and 300mm above the north eastern most corner of the development.

63. Mr Gouge states that the increase in height of the building is not due to additional bulk being added above the height of the original consent, but rather the extension of the uppermost floor over an area of terrain that falls towards Sailors Bay Creek.

64. As at [49], Mr Wells again invokes the concept that a modification application that involves a height exceedance does so to escape the scrutiny afforded by a written request under cl 4.6 of the WLEP. The particulars in support of contention as to building height cite inconsistency with the objectives of the height standard at cl 4.3 of the WLEP.

65. Notwithstanding s 4.55 of the EPA Act is a complete source of power, Mr Gouge again sets out reasons he considers compliance with the height standard is unreasonable or unnecessary in a form consistent with cl 4.6(3)(a) of the WLEP at par 87 of the joint expert report:

“The proposed building height is suited to the Site’s unique setting, sloping topography and flooding hazard, and the specific design response results in a negligible impact when viewed from the surrounding area;

The site is not located in the vicinity of any item of environmental heritage and will not impact on the understanding of heritage items located away from the Site; and

The proposed building as amended appropriately designed to its height and context, particularly through height transition to surrounding land, particularly Sailors Bay Creek, the use of landscaping and design appearance.”

66. Grounds said to be sufficient environmental planning grounds are also set out at par 88 of the joint expert report in the following terms:

“The site has a cross fall. The roof plate of the top storey is flat so that the roof plate breaches the height standard as the site below falls away.

The proposal and amendments do not result in any unacceptable overshadowing impacts and overshadowing is not caused by the proposed variance to the building height control.

The ground floor of the site cannot be lowered due to flood affectation from the adjacent creek.

The 12 m height control contemplates 4 storey development such as the Proposed Development.

The height and form of the building is compatible with the existing infill development as well as sites within the precinct that have been developed with residential flat buildings in line with the R3 medium density zoning.

The site is of sufficient size to accommodate a residential flat building.

The proposed built form is compatible and harmonious with the scale, bulk, and streetscape of similar nearby development.

The proposal remains compatible with both the existing and likely future character of the area. The height non-compliance and amendments do not negatively impact on views from any of the adjoining properties due to its height, siting, design and location.

The amended development maintains adequate privacy as well as visual amenity to, and from all surrounding properties.

The design has optimised the northerly aspect towards the public open space which has minimised, as far as practical, any adverse impacts of the proposal and the variation to the height standard.”

67. In the reasons given in the proceedings that gave rise to the original consent, height is indeed an essential feature or element considered by the Court in its decision to grant consent.

68. The original consent was granted in respect of development that exceeded the height standard, and the Court considered, at some length, a written request in respect of that exceedance, at [30]-[55].

69. The Court did not accept that the exceedance would result in a building that will be ‘significantly higher’ than other development in the R3 zone, nor that an exceedance of the height standard would result in a building that was not in harmony with the surrounding development.

70. Instead, the Court accepted that the sloping site and flood hazard on the site were constraints peculiar to the site, and that the setback of the upper level meant that the exceedance will not be visible from the surrounding land, and that due to the slope of the topography in the area, the minor difference in height between the development on the subject site and existing development further up the slope, would be scarcely perceptible to the ordinarily observer, and so would be compatible in scale and character with surrounding development.

71. In my view, the Court’s reasons set out in the original consent are not disturbed by the minor nature of the change in height, as the further exceedance beyond the height considered in the original consent is due to factors at the ground level below, that is substantially obscured by the dense vegetation in the Sailors Bay Creek riparian zone, and not due to additional height being added to the top of the building, above the line of the parapet.

Bulk and scale is unacceptable

72. The modification application does not demonstrate compliance with State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development (SEPP 65), the Design Criteria and Design Guidance of the Apartment Design Guide (ADG) and the Environmental Planning and Assessment Regulation 2021 (EPA Regulation). According to the Respondent, the modification application results in an unacceptable increase in the appearance of bulk and scale and should be refused.

73. An aspect of the contention is whether the development as proposed to be modified demonstrates compliance with SEPP 65, and the Design Criteria and Design Guidance of the ADG and the EPA Regulation. Lack of conformity with such instruments results in an unacceptable increase in the appearance of bulk and scale.

74. I note here that around five weeks after the ASOFAC was filed with the Court, on 14 December 2023, s 3 of State Environmental Planning Policy Amendment (Housing) 2023 (the amending policy) repealed SEPP 65.

75. The amending policy also inserted Ch 4, Design of residential apartment development into the State Environmental Planning Policy (Housing) 2021 (Housing SEPP). However, at that time, the savings and transition provisions at Sch 7A of the Housing SEPP provided that an amendment to the Housing SEPP did not apply to a development application made but not finally determined before the amendment.

76. As such, on 14 December 2023, Ch 4 did not apply to a development application made, but not determined, and SEPP 65, by virtue of its repeal, likewise did not apply.

77. However, nine days before the commencement of the hearing, on 15 March 2024, subs 8(2A) was inserted in Sch 7A in terms below:

(1) An amendment made to this policy by the amending policy does not apply to the following—

(a) a development application made, but not determined, on or before 14 December 2023,

(b) a modification application made, but not determined, on or before 14 December 2023,

(c) an environmental impact statement prepared in compliance with environmental assessment requirements that were notified by the Planning Secretary on or before 14 December 2023.

(2) An amendment made to this policy by the amending policy does not apply to the carrying out of an activity by the Land and Housing Corporation after 14 December 2023 if—

(a) notice of the activity was given to the council under section 30(1)(b)(i), 43(1)(b)(i) or 108C(1)(b)(i), as in force before 14 December 2023, before 14 December 2023, and

(b) an approval required under the Act, Part 5 for carrying out the activity is granted by the determining authority before 20 December 2024.

(2A) Despite subsections (1) and (2), Chapter 4, as inserted by the amending policy, applies to a matter referred to in those subsections.

(3) In this section—

amending policy means State Environmental Planning Policy Amendment (Housing) 2023.

78. The Respondent was granted leave to substitute references in the ASOFAC to SEPP 65, with reference to Housing SEPP, in which Ch 4 now deals with Design of residential apartment development.

79. Likewise, references in the ASOFAC to the design quality principles formerly contained in Sch 1 of SEPP 65 are now to be read as the design principles at Sch 9 of the Housing SEPP.

80. It is also relevant to state, as the contention invokes the EPA Regulation, that where a modification application relates to residential apartment development, s 102 of the EPA Regulation requires the modification application to be accompanied by a statement by a qualified designer, defined in the Dictionary of the EPA Regulation as a person registered as an architect in accordance with the Architects Act 2003.

81. The statement must verify that the designer designed, or directed the design of the development, and whether they also designed the development the subject of the original consent, and explain how the development addresses the design principles, and objectives in the ADG. Finally, the statement must verify that the modification does not diminish or detract from the design quality of the original consent, nor compromise the design intent of the original consent.

82. The statement cited at [6(6)] was prepared by Mr Matthew Young of 3EM Architects (Arch Reg No. 8646), but was inaccurate in certain respects and so did not comply with the requirements at s 102 of the EPA Regulation. On the second day of the hearing, a revised statement was provided that, notwithstanding reference to the Architects Act 1921, that was repealed in 2003, the statement now complies.

83. So many of the contentions, and their particulars, in the ASOFAC refer to height and FSR, it is left to this contention, in my view, to consider the contribution made by landscaping around the perimeter at the uppermost level to any softening or alleviation of the bulk and scale of the development as proposed to be modified.

84. At the outset of the hearing, the landscape planter at Level 3 was proposed to the perimeter of the northern terrace, returning for a distance to the west and east, but did not continue along the eastern parapet or to the south as appears in the image at p 13 of the planning joint report, re-produced below:

85. In his oral evidence, Mr Wells stated that landscape to the east and south of Level 3 would alleviate some of his concerns as to bulk and scale, given the softening effect of landscape.

86. Responsive to this, the Applicant adopts the terms of a proposed condition of consent as to the extent of perimeter planting at Level 3, which has the effect of proposing continuous landscape planting around the north, east and south of the terrace serving Unit 3.02.

87. The Respondent contends that the development as proposed to be modified does not respond and contribute to the natural features of the site, which are elements found in Principle 1 of Sch 9 of the Housing SEPP.

88. Principle 1, at Sch 9 of the Housing SEPP is in the following terms:

Context and neighbourhood character

(1)  Good design responds and contributes to its context, which is the key natural and built features of an area, their relationship and the character they create when combined and also includes social, economic, health and environmental conditions.

(2)  Responding to context involves identifying the desirable elements of an area’s existing or future character.

(3)  Well designed buildings respond to and enhance the qualities and identity of the area including the adjacent sites, streetscape and neighbourhood.

(4)  Consideration of local context is important for all sites, including sites in the following areas—

(a)  established areas,

(b)  areas undergoing change,

(c)  areas identified for change.

89. Additionally, the Respondent contends that the proposal does not achieve appropriate built form and scale in that the quantum of the development and the building height is excessive, that are elements required by Principle 2 of Sch 9 of the Housing SEPP.

90. Principle 2, at Sch 9 of the Housing SEPP provides:

2   Built form and scale

(1)  Good design achieves a scale, bulk and height appropriate to the existing or desired future character of the street and surrounding buildings.

(2)  Good design also achieves an appropriate built form for a site and the building’s purpose in terms of the following—

(a)  building alignments and proportions,

(b)  building type,

(c)  building articulation,

(d)  the manipulation of building elements.

(3)  Appropriate built form—

(a)  defines the public domain, and

(b)  contributes to the character of streetscapes and parks, including their views and vistas, and

(c)  provides internal amenity and outlook.

91. The designers statement explains the development as proposed to be modified addresses the context and neighbourhood character in a manner that is consistent with the original consent. As the modification application is accompanied by a BASIX certificate, the designer’s statement does not seek to address those design principles at s 102(3) of the EPA Regulation.

92. Of greater assistance is Mr Gouge’s statement at par 36, supported by diagrams at p 37, of the joint expert report that the development responds to the natural features of the land by “pulling back the uppermost level from the boundary, minimising impact and maintain harmony with the bulk and scale of surrounding buildings and streetscape”.

93. As I have found the additional floor space, and height are not excessive, but are acceptable, it follows in my view, that the contention in respect of the bulk and scale must also be resolved in favour of the proposal. I note the perimeter of Level 3 is now proposed to be fringed with landscape planting, and I accept the commonly held view of the parties that the context and neighbourhood character of the R3 zone on the western side of Eastern Valley Way is one undergoing transition, in which the scale, bulk and height of the proposal is appropriate to the desired future character of the area.

Overdevelopment

94. The Respondent contends the modification application results in development that is excessive and constitutes an overdevelopment of the site by virtue of the height and FSR exceedance, and because the development is contrary to the fourth and sixth objective of the R3 Medium Density Residential zone:

•  To accommodate development that is compatible with the scale and character of the surrounding residential development.

…

•  To encourage innovative design in providing a comfortable and sustainable living environment that also has regard to solar access, privacy, noise, views, vehicular access, parking and landscaping.

95. In the reasons given for the original consent, the Court considered a contention in respect of overdevelopment, albeit for reasons other than those now contended.

96. For completeness, the Court, at the time, was asked to consider the cumulative effect of the height exceedance, the site coverage of the proposal, and non-compliance with setback provisions as indicia of overdevelopment.

97. The Court found that, on the basis of blade wall extensions, parapets and planter boxes, add visual interest and streetscape variety, and so did not then represent overdevelopment.

98. In the circumstances now before the Court, Mr Wells argues that the exceedance of height and FSR are evidence of overdevelopment, and that the ‘walking back’ of an agreement in respect of storage in the basement that resulted in compliance with the FSR, “undoes a mechanism that was an essential feature of the Consent”.   

95. As I understand it, the Respondent invites me to view this ‘walking back’ akin to ‘scope creep’ or ‘creep factor’ as it has been called in previous decisions of the Court.

96. As shown in Parkway, there is no legal impediment to lodging an application such as this, and re-agitating certain issues. However, the Respondent submits that an assessment of such an application is not so limited as would prevent the Court from considering the development as a whole, else a certain ‘creep factor’ could infect the planning regime, as explained by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 (Michael Standley) at [476]-[477]:

…The consent authority is directed to consider any s90 matter relevant to the whole development as modified. This is the plain meaning of the provision, and it offers a principled way for limiting the dangers of the creep factor to which reference has already been made.

…

The same point can be demonstrated by reference to the potential evils of the "creep factor" argument raised earlier in a different context. The construction of subsection (3A) which I have espoused offers a principled way of addressing the situation presented by successive modifications that gradually increase the height of a building in a way that is substantial when the original approval is compared with the development embodied in the latest modification proposal. In my view the consent authority is permitted, indeed bound, to assess the environmental impact of the cumulative effect of prior modifications when addressing the latest modification application. …”

101. The alternative view, Mason P observes in Michael Standley, at [476] is:

“…unrealistic and potentially unreasonable because a particular development may have to be viewed as a whole before its impact upon the amenity of a neighbourhood can possibly be gauged. For example, a modification which introduces greater usage of a high rise development may necessitate additional lift facilities. It would be unrealistic to consider the modification if hamstrung by the existing consent's provision for lifts.”

102. Reference to subs 3A, at [100], is a reference to s 102(3A) of the EPA Act in the form it was when considered by Mason P. It is found in a virtually identical form at s 4.55(3) in the EPA Act current at the date of this decision.

103. In my view, there is no risk of creep in the circumstances of this case as the modification application is a modification proposed to the original consent. Should another modification application or applications be lodged sometime in the future that would seek to further modify the development, the text of the provision at s 4.55(3) requires those matters at s 4.15 of the EPA Act as are of relevance to be considered.

104. In the circumstances of this case, the Respondent argues that the Applicant ‘walks back’ agreement as to the number of car parking spaces appropriate in the basement.

105. The Court has considered the number now proposed to be modified, which is greater than the number for which consent was granted in the original consent. The Court has also, in considering the proposed change to the number of car parking spaces in the basement, considered the provisions of s 2.122 of State Environmental Planning Policy (Transport and Infrastructure) 2021, in accordance with s 4.15(1)(a)(i) of the EPA Act, and the car parking rates found in the WDCP 2006 and the WDCP 2023, in accordance with s 4.15(1)(a)(iii) of the EPA Act.

106. Relatedly, the number of car parking spaces displaces the unit storage that was, at the time of the original consent, proposed in the basement. The Court has also considered the location and volume of storage that is now proposed to be located within units, by reference to the ADG, despite the designer’s statement offering little assistance.

107. I have found the FSR and height exceedance to result in no adverse environmental impacts, and I do not understand there to be any reason that I should conclude the development as proposed to be modified is an overdevelopment of the site. The proposal is not inconsistent with the fourth and sixth objectives of the R3 zone.

Precedent and public interest

108. The Respondent contends that the development as proposed to be modified, if approved, would establish an undesirable precedent likely to influence future development in R3 Zone in which the site is located.

109. I accept that precedent can be a valid planning consideration (Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75), however, as I have found the FSR, height and bulk and scale to be acceptable, I do not consider the development as proposed to be modified to be objectionable.

110. Furthermore, I note there are unique features identified in the original consent, including risk of flooding on the site and the proximity of a substantial stand of mature trees that plays not an insignificant role in the question of bulk and scale that is perceived from Eastern Valley Way.

111. The site is also unique to the R3 zone on the western side of Eastern Valley Way for it being the northern most, or last, site in the row of sites between Sailors Bay Road and Sailors Bay Creek Reserve. As such, the uppermost level that is in contention, will not be read against adjoining development to the north, unlike sites to the south that will be read is context with adjoining development.

112. In submissions, the Respondent argues the development is one of the first, if not the first development in the R3 zone. The Court is aware of at least two other medium density developments in the vicinity of the site, at 46-48A Eastern Valley Way, and 52-54 Eastern Valley Way that, together with the development the subject of this modification application, contribute to the desired future character of the area.

The proposed modification is substantially the same

113. In opening submissions, the Applicant invites the Court to consider contentions in respect of urban design, floor space ratio, building height and overdevelopment as a whole.

114. The particulars of each contention refer either to bulk and scale of the development as proposed to be modified or, in the case of the contention in respect of overdevelopment, it cites height and FSR in its particulars, which are also contentions in themselves.

115. As stated at [23]-[25], the assessment required of the Court is one that involves both a quantitative and qualitative appreciation of the development that is proposed to be modified, and the development for which consent was originally granted, including the circumstances in which development consent was granted.

116. For the reasons that follow, I accept that the development as proposed to be modified is substantially the same in terms of its height, FSR, bulk and scale as the development the subject of the original consent:

117. In quantitative terms:

1. The modification application seeks consent for 102m² of additional floor space in the basement, and at Level 3. As I find the additional floor space does not have a visual or performance impact on the development or the road network beyond the site, I consider the area of 46m² of additional floor space on Level 3 that is visible to be the quantum of particular focus of this assessment.

2. As stated at [54]-[57], I accept the additional floor space will remain scarcely perceptible, notwithstanding the uppermost floor now, as it did in the original consent, exceed the floor area control at Part D2 of the WDCP 2006 of no more than 60% of the floor below.

3. The height exceedance can also be described in quantitative terms of between 300-350mm above the height of the development the subject of the original consent when measured at the north eastern most corner of Level 3, or 350mm at the north western most corner is not a material change, in my view, to the height, bulk or scale of the development when viewed from Eastern Valley Way, or from the park north of the Sailor’s Bay Creek Reserve. The parapet is not proposed to be raised, and no additional bulk is proposed above the parapet to Level 3. The height exceedance is not due to additional built form above this level, but is instead the result of built form extending northwards as the site below it falls towards Sailor’s Bay Creek. While the Applicant submits the Court dismissed a similarly minor modification proposed to the upper levels of a development in Arrage v Inner West Council [2018] NSWLEC 1628 (Arrage No 2), it has to be noted the modifications in that matter, at [4], are shown to comprise, relevantly, modification of the approved fifth floor communal open space to provide three additional dwellings, the addition of a sixth storey containing a two bedroom dwelling; and communal open space, comprising seating, landscaping and BBQ. The distinction between the modifications proposed in Arrage, and the extension of an already approved level by a distance of 1.22m could not be more stark.

118. In qualitative terms:

1. Firstly, the site, and the siting of the development on the site, is such that the additional floor space proposed at Level 3 of the development is virtually surrounded by dense tree canopy planted in the riparian zone of Sailor’s Bay Creek Reserve, or street trees located within the Eastern Valley Way road reserve. As such, I accept Mr Gouge’s opinion that a sightline to the additional bulk derived from the additional floor space is difficult to obtain from the west, north or south of the site. To the extent a sightline is visible from certain locations on Eastern Valley Way, I regard the scale of the additional bulk in the north easter corner of Level 3 to be so minor as to remain scarcely perceptible to anyone in the public domain.

2. Secondly, as the perimeter of the uppermost level is now proposed to be a continuous planter, as shown in the marketing imagery at [84], I accept the additional bulk to the north east remains softened by a continuous planted edge, and only reinforces the setback of the uppermost level from the level below.

3. Finally, I do not consider the development as proposed to be modified to be antithetical to the objectives of the height standard at cl 4.3 of the WLEP, or of the FSR standard at cl 4.4 of the WLEP. Nor is it contrary to the objectives of the zone, as the development the subject of the original consent was likewise found not to be.

119. As stated at [93], I find the bulk and scale of the proposal acceptable, and I find the proposal is not an overdevelopment of the site for reasons at [107].

Conditions are disputed

Section J of the National Construction Code

120. Condition 102, as proposed by the Respondent, is in an identical form to that imposed in the original consent. The condition provides:

“Compliance with National Construction Code

All building works must be carried out in accordance with the performance requirements of the National Construction Code.

(Reason: Compliance)”

121. The Respondent submits that it is not necessary to press a contention in this regard, as compliance with the National Construction Code (NCC) is mandatory, and Condition 102, in the form it was in the original consent, remains valid without need of amendment.

122. The Applicant argues that Condition 102 should be qualified by inserting the following words after the text:

“…except -Section J of NCC 2022 Volume One relating to “Facilities for electric vehicle charging equipment” (carpark provided with electrical distribution boards dedicated to electric vehicle charging)”

123. Mr Gouge’s written evidence is that at the time of the original consent, there was no requirement in the NCC for Electric Vehicle (EV) charging and the progress of construction is such that the basement is substantially complete. To require EV charging at this stage of the works would require a substation for which no provision has been made.

124. Instead, the Applicant has provided general power outlets on columns that were pointed out to the Court on the site view that, while not consistent with Section J, permit charging of EV’s, albeit via what is known as ‘trickle charge’.

125. The Respondent contends that the Applicant wishes for the Court to grant a special ‘carve out’ that would relieve the development from compliance with parts of the NCC at Section J9D4: Facilities for electric vehicle charging equipment.

126. Section J9D4 (Exhibit K) is in the following terms:

“(1) Subject to (2), a carpark associated with a Class 2, 3, 5, 6, 7b, 8 or 9 building must be provided with electrical distribution boards dedicated to electric vehicle charging—

(a) in accordance with Table J9D4 in each storey of the carpark; and

(b) labelled to indicate use for electric vehicle charging equipment.

(2)Electrical distribution boards dedicated to serving electric vehicle charging in a carpark must—

(a) be fitted with a charging control system with the ability to manage and schedule charging of electric vehicles in response to total building demand; and

(b) when associated with a Class 2 building, have capacity for each circuit to support an electric vehicle charger able to deliver a minimum of 12 kWh from 11:00 pm to 7:00 am daily; and

(c) when associated with a Class 5 to 9 building, have capacity for each circuit to support an electric vehicle charger able to deliver a minimum of 12 kWh from 9:00 am to 5:00 pm daily; and

(d) when associated with a Class 3 building, have capacity for each circuit to support an electric vehicle charger able to deliver a minimum of 48 kWh from 11:00 pm to 7:00 am daily; and

(e) be sized to support the future installation of a 7 kW (32 A) type 2 electric vehicle charger in—

(i) 100% of the car parking spaces associated with a Class 2 building; or

(ii) 10% of car parking spaces associated with a Class 5 or 6 building; or

(iii) 20% of car parking spaces associated with a Class 3, 7b, 8 or 9 building; and

(f) contain space of at least 36 mm width of DIN rail per outgoing circuit for individual sub-circuit electricity metering to record electricity use of electric vehicle charging equipment; and

(g) be labelled to indicate the use of the space required by (f) is for the future installation of metering equipment.”

127. Furthermore, Part F4.5 of the WDCP 2023 now requires the provision of EV charging for new major residential development, and Part 5.6 of the WDCP 2023 relevantly provides:

“a. All garages and car spaces allocated to an individual residential apartment must make provision for:

• Level 2: single or 3-phase electric vehicle supply equipment with a power range of 7kW-22kW, as defined by NSW Electric and Hybrid Vehicle Plan (Future Transport 2056) from Transport for NSW, which provides faster, more secure charging.”

128. Finally, the Respondent submits that the modification application did not seek any modification of the relevant condition of consent that is, in any event, a condition prescribed by s 69 of the EPA Regulation.

129. Section 69 of the EPA Regulation deals with compliance with Building Code of Australia and insurance requirements under Home Building Act 1989, in the following terms:

69 Compliance with Building Code of Australia and insurance requirements under Home Building Act 1989

(1)  It is a condition of a development consent for development that involves building work that the work must be carried out in accordance with the requirements of the Building Code of Australia.

…

(4)  In subsection (1), a reference to the Building Code of Australia is a reference to the Building Code of Australia as in force on the relevant date.

…

(7)  In this section—

relevant date has the same meaning as in the Environmental Planning and Assessment (Development Certification and Fire Safety) Regulation 2021, section 19.

130. It is relevant to note here that a reference to the Building Code of Australia is a reference to the NCC.

131. The Building Code of Australia is defined at s 1.4 of the EPA Act in the following terms:

Building Code of Australia means the document, published by or on behalf of the Australian Building Codes Board, that is prescribed for purposes of this definition by the regulations, together with—

(a)  the amendments made by the Board and prescribed by the regulations, and

(b)  the variations approved by the Board in relation to New South Wales and prescribed by the regulations, and

(c)  the variations prescribed by the regulations.

132. Furthermore, s 4 of the EPA Regulation provides:

4 Building Code of Australia

(1) For the purposes of the Act, section 1.4(1), definition of Building Code of Australia, Volumes 1 and 2 of the National Construction Code, referred to as the Building Code of Australia, published by the Australian Building Codes Board, as in force from time to time, are prescribed.

(2)  All amendments and variations of the Building Code of Australia that are from time to time made or approved by the Australian Building Codes Board in relation to New South Wales are prescribed.

(3)  An amendment or variation comes into effect on the date specified by the Australian Building Codes Board for New South Wales.

133. The Applicant submits that a certifier may require of the Applicant full compliance with Section J9D4 of the NCC unless the terms of Condition 102 are varied to exempt the development from that part of the provision nominated by the condition.

134. I accept the Respondent’s argument that it is not for the Court to vary the terms of conditions that are prescribed by the EPA Regulation, nor pick and choose the provisions of the NCC that are of convenience to an Applicant. Furthermore, I accept the question is a hypothetical one for which a cure may not be necessary, and which is, in any event, a matter for construction compliance.

Controlled Activity Approval

135. It is commonly held that at the time of the original consent, the predecessor to WaterNSW, provided General Terms of Approval (GTA) dated 27 August 2021 (Exhibit 2, Tab 14) that were, for whatever reason, not incorporated in to the without prejudice conditions of consent annexed to the original consent.

136. However, on 24 February 2023, the Applicant sought, and was issued, a Controlled Activity Approval by the Department of Planning and Environment (Exhibit 6). The terms of the Controlled Activity Approval are virtually identical to those set out in the GTA.

137. Parties agree the terms of a condition of consent, at Condition 108 that the development is to comply with the Controlled Activity Approval, and any amendments or variations made thereto.

Orders

138. The Court orders that:

1. The modification application is approved.

2. Development Consent No. DA-2021/90 is modified in the terms in Annexure A.

3. Development Consent No. DA-2021/90 as modified by the Court is Annexure B.

4. All exhibits are returned, except for Exhibits A, B and H.

T Horton

Commissioner of the Court

**********

Annexure A

Annexure B

Decision last updated: 12 April 2024