Camuglia v North Sydney Council

[2021] NSWLEC 1588

Land and Environment Court

New South Wales

Medium Neutral Citation:

Camuglia v North Sydney Council [2021] NSWLEC 1588

Hearing dates:

16-17 September 2021

Date of orders:

11 October 2021

Decision date:

11 October 2021

Jurisdiction:

Class 1

Before:

Horton C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development Consent No. DA55/19 is modified in the terms in Annexure A.

(3) Development Consent No. DA55/19/2 as modified by the Court is Annexure B.

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

Catchwords:

MODIFICATION APPLICATION – residential apartment development – residential flat building – whether condition should be deleted – assessment of view loss – vertical transportation systems – car lift

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.55

Environmental Planning and Assessment Regulation 2000, cl 121B

Land and Environment Court Act 1979, ss 34, 39

North Sydney Local Environmental Plan 2013, cl 4.3

Cases Cited:

1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

Camuglia v North Sydney Council [2020] NSWLEC 1406

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

Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333

Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414

Tenacity Consulting Pty Ltd v Warringah Council [2004] NSWLEC 140

Texts Cited:

Australian Standard AS1735 – Lifts, escalators and moving walks

Australian Standard AS 2890.1-2004 – Parking Facilities

North Sydney Development Control Plan 2013

Category:

Principal judgment

Parties:

Yolenda Camuglia (Applicant)
North Sydney Council (Respondent)

Representation:

Counsel:
A Galasso SC (Applicant)
K Gerathy (Solicitor) (Respondent)

Solicitors:
Mills Oakley (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2020/356210

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal brought under s 4.55(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of modification application DA55/19/2 to modify development consent DA55/19 for the demolition of existing structures and construction of a new residential flat building containing three units, a new garage structure and associated works at No 5 Bay View Street, Lavender Bay (the site).

2. The appeal seeks to modify the conditions of consent previously granted by deleting Condition A2 that requires reduction in height of the roof ridge height, surrounding parapet for the street level garage/entry structures at Bay View Street level, comprising the car lift, visitor’s car space, and pedestrian entry lift and stairwell.

3. Condition A2 is in the following terms:

“The following design amendment must be made to the drawings referred to in condition A1:

The overall roof ridge height and surrounding parapet for the structures at Bay View Street level comprising the car lift, visitor’s car space roof over and pedestrian entry lift and stairwell are to be reduced in height by 630mm or not exceed a maximum RL of 22.00.

Plant structures on the roof required for the proper operation of the car lift are exempted from this requirement.

Plans and elevations demonstrating compliance with this condition MUST BE submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate.

(Reason: To ensure views are preserved to surrounding properties)”

The modification application is amended

4. Consent for Development Application No DA55/19 was granted by the Court on 3 September 2020, subject to conditions that formed Annexure A to judgment in proceedings 2019/268493.

5. On 23 November 2020, the Applicant lodged modification application DA55/19/2 seeking to remove Condition A2. The application was rejected by the Respondent.

6. On 16 December 2020, the Applicant filed a Class 1 application with the Court pursuant to s 4.55(8) of the EPA Act that was the subject of a conciliation conference convened in accordance with s 34 of the Land and Environment Court Act 1979 (LEC Act). As parties could not reach agreement, the conciliation conference was terminated.

7. Subsequently, the Applicant was granted leave to amend the modification application by Notice of Motion heard on 16 July 2021.

8. At the commencement of the hearing, the Applicant sought to further amend the modification application before the Court by relying upon a Notice of Motion filed with the Court on 13 September 2021, supported by an Affidavit attested to by Ms Amelia Adams, and seeking to rely on the following:

1. Amended Architectural Plans prepared by MCK Architects, later marked Exhibit H

2. View Assessment Diagrams prepared by MCK Architects, later marked Exhibit J

3. Car Lift Head Beam Diagram prepared by M Brosio Consulting, later marked Exhibit L

4. Statement of preliminary advice prepared by John Tibbitts, later marked Exhibit M.

9. The Respondent objected to the Statement prepared by Mr Tibbitts at [8(4)] being admitted on the basis that the Applicant had not addressed the height of the car lift in the Statement of Facts and Contentions in Reply filed 20 April 2021, the statement did not form part of the joint conferencing of the lift experts, and the late serving of the information was prejudicial.

10. I allowed Mr Tibbitts’ statement, later marked Exhibit M, on the basis that it had been provided to the Respondent’s planning expert on 3 September in accordance with directions of the Court dated 23 August 2021, and because Mr Tibbitt’s was available for cross examination.

11. On that basis, I noted that the Respondent agreed, pursuant to cl 121B of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) that the modification application may be amended by the Applicant in accordance with the documents listed at [8(1)-(3)].

12. While I do not understand Mr Tibbitts’ Statement of preliminary advice to be a document that seeks to amend the modification application, but is supporting evidence, for the removal of doubt, I exercised the power under s 39(2) of the LEC Act to agree, on behalf of North Sydney Council as the relevant consent authority under cl 121B(1) of the EPA Regulation, to amending the modification application DA55/19 to rely on the document at [8(4)].

13. I further ordered that:

1. The amended modification application is to be lodged by the Applicant on the NSW planning portal within 7 days of the date of this order and the Applicant is to notify the Respondent and the Court after it has been lodged.

2. In the event the Applicant is unable to lodge the amended modification application on the NSW planning portal, the Applicant is to notify the Court via Online Court as soon as possible but no later than 14 days after the date of the order and request for the matter to be relisted for further directions.

3. The Applicant is to file a copy of the amended modification application within 7 days after the Applicant has notified the Respondent that the amendment has been lodged on the NSW planning portal.

14. At the commencement of the second day of the hearing, the Applicant advised the Court that lodgement of the amended application was effected on 17 September 2021, and the amended application was filed with the Court on 20 September 2021.

The site and its context

15. Bayview Street runs essentially parallel to the western shoreline of Lavender Bay in the small suburb of the same name, which lies to the west of the northern approach to the Sydney Harbour Bridge.

16. The subject site is located between Bay View Street and the shoreline of Lavender Bay where terrain falls steeply from the west to east.

17. The site is legally described at Lot 2 in DP 167089, having a 11.885m wide street frontage, and a total site area of 717.2m².

18. The parties agree that, on its ‘highside’, Bay View Street is characterised by detached dwellings built over an almost continuous sandstone podium that is, in part, listed for its local heritage significance. On any measure, these dwellings enjoy a magnificent view to the east that includes the Sydney Harbour Bridge, Sydney Opera House, Luna Park and the waters of Sydney Harbour itself, including Lavender Bay itself.

19. On the ‘lowside’ of Bay View Street, the properties are largely single storey in their presentation, and step down the site towards the water. It is this combination of topography and built form that gives rise to the dispute in this matter.

Public submissions

20. Public submissions received in response to the notification ending in February 2021 are contained in Exhibit 2, Tabs 11-12, and public submissions dating from September 2021 are contained in Exhibit 3, Tabs 7-19. The Respondent’s list of objectors was marked Exhibit 4.

21. I note here that all the written submissions are from residents of Bay View Street.

22. The owners of No’s 8 and 10 Bay View Street were granted leave to present oral submissions via MS Teams. Both submissions are to the effect that view loss would result from the removal of Condition A2 and that the consent as granted, inclusive of the condition, otherwise provides for appropriate view sharing between the properties.

23. The oral submissions were supported by a View Analysis Report prepared by Urbis dated May 2021 (Urbis Report) (Exhibit 2, folios 432-484).

24. While the owner of No 8 Bay View Street notes the extent of view loss in the Urbis Report is assessed as ‘moderate’, the effect on the owner and his family is said to be ‘devastating’.

The issues are defined

25. As stated earlier, the proposed development steps down the site from Bay View Street to the shoreline of Lavender Bay. According to the survey, the change in level is approximately 17m (Exhibit A, Tab 6).

26. To the north of the Bay View Street frontage is a passenger lift, and stairs providing access to the apartments contained at the levels below the street.

27. To the south of the Bay View Street frontage, the architectural drawings note what is referred to as a ‘car lift’ which transports vehicles entering the site at street level, to the car park four levels below.

28. Between the passenger lift and car lift, is a single visitor car park. A continuous, operable vertical batten screen acts as a veil across all three elements, topped by the concrete parapet, or fascia, that is the focus of the dispute.

29. At the outset, it is relevant to state that, while particular terminology of vertical transportation systems adopted by those familiar with the field was the subject of expert evidence, for the purposes of this decision, I will refer to all vertical transportation options by the commonly understood term of ‘car lift’ as is indicated on the architectural plans, inside of which is a ‘lift car’, being that which transports the car and its occupants.

30. While the characteristics of other terms such as ‘hoist’ and ‘platform’ were also used by the experts, there is agreement that the outcome proposed by the Applicant is for a fully enclosed cabin (the lift car) in which a car and its occupants would be carried vertically between Bay View Street and the car park level.

31. The clearance required by the mechanical plant used to drive the lift car is the subject of debate.

32. The Applicant submits that the wording of par 2 of Condition A2 serves to exempt plant structures on the roof required for the proper operation of the car lift from the requirement to not exceed a maximum RL of 22.00.

33. So understood, the Applicant has prepared plans (Exhibit E) and photomontage views (Exhibit F) illustrative of the condition imposed on the Bay View Street, comprising a taller element over the location of the car lift that the Applicant submits is required for accommodating the mechanism operating the car lift, and a lower element over car parking and stair access into the site.

34. The proposal for which consent has been granted, subject to Condition A2, is documented in the architectural plans contained in Exhibit A (Tab 4). A glazed roof is shown over the car lift shaft.

35. According to the Applicant, the glazed roof provides natural daylight, described as ‘borrowed light’, to rooms at the lower level of the proposed development.

36. As a result of the plans at [8(1)], the Applicant considers the dispute to be in respect of a height of 300mm as the condition exempts the area over the car lift from achieving RL 22.00, and the plans at Exhibit H achieve RL 22.30 east of the Bay View Street frontage where a downward sightline from properties on the west of Bay View Street is gained over the stepped roof form now proposed.

37. Furthermore, the Applicant cites a preference by the Applicant’s architect to adopt the parapet level of the neighbouring property at 3 Bay View Street, as the consistent datum for the Bay View Street parapet.

38. The Respondent contests that the development depicted in Exhibit F is consistent with the terms of Condition A2, and submits that alternative car lift systems are available, and are commonly used in the North Sydney Council local government area that would permit compliance with the terms of Condition A2, and that would avoid the view loss resulting from any built form higher than RL 22.00.

39. In the alternative, it is open to the Court to accept the evidence of Mr Tibbitts and modify the terms of Condition A2 to remove the upstand shown in Dwg 7.20 (Exhibit H), that Mr Tibbitt’s considers unnecessary to the requirements of the operation of the car lift, and apply an RL of 22.30.

Expert evidence

Expert lift evidence

40. The Court was assisted by the evidence of experts in traffic and vertical transport, Mr John Tibbitts, for the Applicant, and Mr Craig Mclaren, for the Respondent, who conferred in the preparation of a joint expert report that was marked Exhibit 7.

41. Annexed to the joint report is a brochure from Hercules Carparking Systems (Annexure B), and a letter authored by Mr Robert Farrugia dated 26 August 2021 (Annexure C).

42. It is relevant to record here that the Applicant objected to certain aspects of the joint report, including Annexure B and C, and references in the report to those annexures, and to Tabs 20-32 of the Respondents Supplementary bundle at Ex 3.

43. The basis of the objection was twofold: firstly, that Annexures B and C was material provided by a sales and technical consultant who was not available for cross examination, and secondly, that other sites in the North Sydney local government area were irrelevant to consideration of the matter before the Court.

44. I allowed the material to be admitted, subject to weight, and noted the Court would entertain a limited compass on evidence being adduced from the Annexures in the absence of its author.

45. It is commonly held by the parties and the experts that the height above street level required by the car lift is essentially determined by the mechanical system required for the operation of the car lift.

46. It is also commonly held by the experts that the clearance within the car lift may be reduced to 2200mm in accordance with AS2890.1-2004.

47. The experts are divided as to whether a hydraulic mechanism, which relies on a hydraulic ram pushing up from a lift pit, or an overhead mechanism housed at the top of the shaft is appropriate in the circumstances.

48. The Respondent relies on car lift systems used in what are said to be comparative developments at No’s 7-9 Harriette St, Neutral Bay and at No 85 Kurraba Point Road, Neutral Bay (Exhibit 3, Tabs 20-32).

49. Relevant to the circumstances of this case, the car lifts at the addresses above do not rely upon an overhead mechanism, and so do not require a lift overrun.

50. The clearance required above the last floor served, in this case, Bay View Street, is determined by Australian Standard AS1735, which appears in evidence (Exhibit 3, Tabs 2-3).

51. It is Mr Tibbits’ written evidence that the vertical clearance required by reference to AS1735 is determined by the following constituent parts of the lift mechanism:

• Allowances for the length of the counter weight ‘buffer stroke’ plus counterweight buffer clearance, and ‘jump’ due to ‘rope stretch’, plus;

• Height of the lift car, plus;

• Thickness of the lift car roof, plus;

• the height of a safety rail above the lift car roof, plus;

• the clearance between the safety rail and the underside of the lift shaft roof.

52. Whether a hydraulic lift or overhead driven lift is selected, the overhead clearance is the same, according to Mr Tibbitts.

53. In summary, if a vehicle height of 2200mm is assumed, the hydraulic system preferred by Mr Mclaren requires 2700mm clearance above street level, consistent with Annexure C of Exhibit 7, whereas the cable driven system preferred by Mr Tibbitts requires 3900mm clearance, consistent with Exhibit K.

Planning evidence

Streetscape character

54. The Applicant relies on the decision of McClellan CJ in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 (1643 Pittwater Road) at [51], to the effect that s 4.55 of the EPA Act constrains the Court’s power by limiting the discretion that may be exercised to those matters raised for consideration in the modification application.

55. In this case, Mr Galasso SC, counsel for the Applicant, submits that the removal of Condition A2 is a question of height, and views, but not of streetscape.

56. However, according to the Respondent, the additional height now proposed, when viewed in conjunction to No 3 Bay View Street, will result in a continuous 22m long street wall that rises to 4.7m in height at the northern end due to the downward fall of Bay View Street in that direction.

57. The parapet height resulting from the modification proposed by the Applicant is 1.48m, or 630mm higher than the proposal for which consent has been granted, subject to Condition A2.

58. The result compromises the amenity of the surrounding area, offending the fourth objective of development in the R3 Medium Density Residential zone according to the North Sydney Local Environmental Plan 2013 (NSLEP), does not ensure that a high level of residential amenity is achieved and maintained, being the sixth objectives of the R3 zone, and fails to conform to the objectives of the height standard at cl 4.3 of the NSLEP which seeks development that steps to follow the natural gradient of sloping land.

59. While not the Respondent’s preferred result, the step in the parapet to Bay View Street that is shown in Exhibit F at least provides a more appropriate transition to the lower scale of No 7 Bay View Street.

60. The experts differ in their view on the built form that results from the presentation to Bay View Street by the higher parapet level of RL 22.60.

61. The Applicant has prepared streetscape elevations that the parties agree depict the distinct character of the ‘highside’ and ‘lowside’ of Bay View Street (Exhibit G).

62. In his oral evidence, Mr Darroch identified properties to the north of Bay View Street that are large and more continuous in their frontage without gaps between, in contrast to the lower scale character of the south side of Bay View Street which he agrees contains gaps between properties, affording views.

63. Mr Darroch considers the future character of the southern end of the ‘lowside’ of Bay View Street is likely to be greater in scale, given residential flat buildings are now permissible in the R3 zone, whereas at the time of the original consent this was not the case.

64. Mr Darroch also states the width of the built form shown in Exhibit H that contributes to what the Respondent characterises as a length of 22m is already the subject of consent, and notes views are afforded through a 400mm gap between No’s 3 and 5 Bay View Street, and at the north between No’s 5 and 7 Bay View Street, and again through the visitor car park, possibly to the Sydney Opera House and Sydney Harbour Bridge beyond.

65. Furthermore, the higher parapet level presenting to Bay View Street is not the critical level contributing to view loss, but it is instead the leading edge to the east that matters, and this is at the lower level of RL 22.30.

54. The amended modification application is preferable to the outcome that is otherwise agreed by the experts to be a probable outcome of Condition A2, depicted in Exhibit F, whereby the entirety of the lift shaft footprint in plan may be identified as a lift overrun, and so be exempt from the terms of Condition A2 to not exceed RL 22.00.

55. The result is a stepped form that imposes a greater impact on views from No’s 8 and 10 Bay View Street.

56. In now proposing a solution that avoids such an impact, Mr Darroch considers the Applicant to have achieved a more skilful design that preserves and enhances views that would otherwise be impacted.

Views

69. Mr Rothe is of the view that the Exhibit H plans do not provide sufficient information to assess the impact on views from No’s 8 and 10 Bay View Street as no sitting view has been assessed.

70. According to Mr Darroch this for is two reasons; the first being due to limited access being granted to the Applicant by the owners of those properties, and secondly in recognition of the principle advanced in Tenacity Consulting v Warringah [2004] NSWLEC 140 (Tenacity), that sitting views are difficult to protect.

71. Part B, Section 1.3.6 of the North Sydney Development Control Plan 2013 (NSDCP) identifies the sloping topography and proximity to the harbour, and the importance of views and vistas in the character and amenity of the area.

72. The objectives and provisions of the Section relevantly provide:

“Objectives

O1 To protect and enhance opportunities for vistas and views from streets and other public places.

O2 To encourage view sharing as a means of ensuring equitable access to views from dwellings, whilst recognising development may take place in accordance with the other provisions of this DCP and the LEP.

Provisions

P1 Development should be designed such that views from streets and other public places, as identified in the relevant area character statement (refer to Part C of the DCP), are not unreasonably obstructed.

P2 Development should be designed to maximise the sharing of views from surrounding properties and public places.

…”

73. Views are identified as significant elements in the McMahons Point Neighbourhood, in which the site is located. The Area Character Statement at Part C, Section 9.6.1 of the NSDCP identifies the significant elements of the area to include, at P6:

“The following views and vistas are to be preserved and where possible enhanced:

(a)District views from most properties to Sydney Harbour and beyond.

…

Identity/Icons

P7 Lavender Bay”

74. The Urbis Report provides views from both seated and standing positions.

75. However, according to Mr Darroch, the Urbis Report is inaccurate as it does not model the form of the consent, as depicted in Exhibit F, or of the modification application now before the Court, depicted in Exhibit J. Furthermore, the seated views in the Urbis Report show the view is itself obstructed by loose furniture, balustrade and the like.

76. The stepped roof form now proposed is in accordance with the objectives and provisions of Part B, Section 1.3.6 of the NSDCP, in that vistas and views from Bay View Street are provided, and private views are shared in a manner that does not maximise the view from those private properties, but maximises the sharing of views between properties.

77. Finally, the Applicant submits that any assessment of the reasonableness of the proposal in accordance with the fourth test in Tenacity must give weight to the degree to which the proposed modification complies with the applicable height standard of 8.5m.

Consideration

78. In considering this appeal, the Court exercises the functions of the Council in determining the modification application pursuant to s 4.55(2) of the EPA Act. Subsection 4.55(2) provides relevantly as follows:

(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

…

(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.

…

79. The exercise of the power in subs 4.55(2) requires the Court to be first satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted.

80. If the Court is not satisfied, then there is no power to modify the consent, regardless of whether or not the application might be worthy of approval on its merits.

81. The parties jointly submit that the development as proposed to be modified is substantially the same as the development for which consent was originally granted.

82. If the Court forms an opinion of satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted, and the other matters in subs 4.55(2) are satisfied, subs (3) provides that:

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.

83. The Applicant also submits that the means by which consent may be modified is facultative and beneficial, as shown in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163 (Michael Standley), at [475], and that the comparison required by s 4.55(2) is between the development as modified and the development as originally approved.

84. In essence, the Applicant submits that the comparison to be made is between the outcome depicted in Exhibit F, and Exhibit J.

85. Exhibit F is re-produced below:

86. Exhibit J is re-produced below:

87. Exhibit F shows a lift overrun extending vertically to a height of RL 22.60. The Applicant argues that a lift overrun, by virtue of it enclosing plant and equipment required for the operation of the car lift, within the overall envelope depicted, is consistent with the exemption set out in paragraph 2 of Condition A2.

88. In support of its submission, the Applicant invites the Court to consider reference to plant that is ‘on’ the roof, to be inclusive of plant that is ‘part of’, ‘in’ or ‘under’ the roof.

89. I decline the Applicant’s invitation, because I do not understand use of the term ‘on the roof’ as it is relied on by the Applicant. Plant and equipment that is enclosed by a roof cannot be said to be ‘on’ it anymore than a glass of water or laptop on a table can be said to be part of, in, or under the table.

90. While I accept conditions of consent are not drafted with the precision of legal submissions, I am assisted in my conclusion firstly, by the reason given for the imposition of the condition which is to ensure that views are preserved to surrounding properties, and secondly, in the evidence of Mr Tibbitts’ who observed that all the plant is “in the shaft”.

91. However, it is not the shaft, but plant structures to which the height exemption applies.

92. When read as a whole, the condition imposes a maximum level of built form that is no higher than RL 22.00 except for plant structures required by the lift mechanism, that would be supported on the surface of the roof.

93. How such plant structures, not shown on Exhibit C plans, might be placed on a roof that is entirely glazed is not explained, however I do not accept the Applicant’s submission that the intent of the condition is to reduce the height of the roof but for the entirety of the roof to the lift shaft.

94. Instead, I understand Condition A2 to grant a limited exemption for that plant that is required to be on the roof, and not for the whole of the lift shaft including that plant.

95. The Applicant’s construction of the condition appears to be used as a ground to increase the entirety of the roof over the shaft required for the car lift, whether that area contains plant structures or not. The result is an obstruction of the view from properties on the highside of Bay Views Street.

96. As I understand Mr Rothe’s evidence at par 4.3.9 of the joint report, for the built form depicted in Exhibit F to be accepted as an outcome consistent with the Condition, a certifier would have to form the view that the increase in height of the entire footprint of the lift shaft is exempt from the limitation on height.

97. If a certifier is so satisfied, Mr Rothe observes the outcome depicted in Exhibit F would be permitted without further input from the Council.

98. I understand Mr Rothe’s contribution at par 4.3.9 to be no more than a statement of fact that does not purport to provide opinion as to the likelihood of a certifier forming that view.

99. For the reasons set out above, I consider it unlikely that a certifier would adopt the broad construction of the terms in par 2 of Condition A2 offered by the Applicant.

100. This is not to say that I do not consider the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted.

101. The essential features or elements of the originally approved and modified developments are clearly the roof height and surrounding parapet for the structures at Bay View Street level, or frontage.

102. A stream of authorities has held that the term “modify” means “to alter without radical transformation” (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at [42], Michael Standley at [474], Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [13] and Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [27]).

103. While it cannot be said that the modification application seeks to ‘radically transform’ the development for which consent was originally granted, I do not believe the illustrative plans (Exhibit E), and view assessment (Exhibit F) accurately depict the development for which consent was originally granted.

104. In undertaking the comparison I am required to make by s 4.55 of the EPA Act between the development as modified and the development as originally approved, I am assisted in part by the levels shown in architectural plans in Exhibit E, the lower section of the roof shown in Exhibit F, and the eastern leading edge of the roof shown in Exhibit J.

Public submissions

105. Subsection 4.55(2)(d) also requires that I consider public submissions made concerning the proposed modification.

106. Of particular note in the circumstances of this case, is the objection taken to the view loss incurred as a result of the proposed increase in the roof height and parapet that is sought on the grounds of accommodating the type of lift selected.

107. Lifts are complex mechanical systems that permit little, if any, customisation to a specific site or circumstance. One of the many reasons for this is the risk to life safety associated with the operation of lift systems. It is well known that lifts are required to have a range of safety systems to mitigate this risk.

108. There is no lift shaft or lift overrun provided above ground in the examples of lifts identified by the Respondent, unlike the circumstances of the development for which consent was originally granted, in which a lift shaft forms a part of the presentation to the street.

109. While I accept that the examples of lifts provided by the Respondent is reflective of a growing market evident in matters that come before the Court, on the evidence before me, I accept that it is appropriate to make provision for life safety systems in the lift shaft consistent with the relevant Australian Standard, but this accommodation should be limited to that purpose.

110. On the basis of those provisions set out at [51], I accept that a vertical clearance of 3900mm from the Bay View Street level should be provided.

111. Further, on the evidence of Mr Tibbitts, and the lift head beam diagram at Exhibit L, I understand that a maximum building height of RL 22.30 accommodates provision for life safety and for the operation of the car lift.

112. Finally, Exhibit L satisfies me that a generous area of glazing is capable of being integrated into the design of the roof over the lift shaft in a manner that provides for structural support to an overhead lift mechanism, if that is to be used, and daylight to the lower levels of the lift shaft, while also retaining the pebble roof evident in Dwg 7.20 (Exhibit H).

113. In so finding, I have considered the effect of the modification proposed on the extent to which views are shared, against the reasonable mechanical requirements of the car lift for which consent has been granted.

114. On balance, and assisted as I am by the Urbis Report, Exhibits F and J, I find the view loss likely to be experienced by No’s 8 and 10 Bay View Street as a result of a roof at an RL 22.30 to be minor in the context of the whole view, and if the roof is limited to that level, can be said to maximise the sharing of views while recognising development in accordance with the relevant objectives and provisions of the NSDCP, and NSLEP within the constraints of the mechanical requirements of the car lift.

115. However, the mechanical requirements of the car lift do not extend to determining the height of the parapet fronting Bay View Street.

116. While I state here that it is generally to be applauded for a proposal to take cues from their immediate context, in this instance, the argument to adopt the level of the parapet to No 3 Bay View Street as a datum across the frontage of the subject site comes at the expense, however minor, of water views where the parapet is viewed on the oblique at which point the higher level is not masked by the roof beyond.

117. In my judgment, and absent evidence to the contrary, this effect is likely to be more evident from No’s 8 and 10 when those views are taken from a seated position.

118. The submission from the owner of No 3 Bay View Street, unaffected by view loss, notes the height with which the Applicant seeks to align is determined in that instance by the mechanical requirements of a car stacker, which is different to the requirements of a car lift (Exhibit 2, folio 494).

119. I accept Mr Darroch’s oral evidence that nothing comes from the difference in height of the concrete fascia resulting from the proposed modification, when compared to the thickness of the concrete fascia at No 3 Bay View Street.

120. For similar reasons, I do not regard a step in the parapet heights between the two properties to amount to anything more than deference to the natural topography of Bay View Street.

121. Accordingly, in applying the fourth test of Tenacity, while there is no question the development as proposed to be modified is well below the height standard applicable to the site, a proposal that seeks the benefit of the height standard would presumably impose devastating impacts on views that may be fatal to the application. In the circumstances of this case, the reasonableness test is applicable to the basis for adopting the parapet height of No 3 Bay View Street, which I find sufficiently tenuous to reject in light of the impact at [116]-[117].

122. Finally, subs 4.55(3) requires that I also consider the reasons given by the consent authority for the grant of consent that is sought to be modified. In the circumstances of this case, the consent authority was the Court providing judgment under s 34 of the LEC Act in Camuglia v North Sydney Council [2020] NSWLEC 1406.

123. At [23], the Court accepted the explanation of the parties that the approved height variation addressed any potential view loss from adjoining properties, resolving relevant objector submissions, and noted the effect of Condition A2 was to reduce the “proportion of height variation” which I understand to relate, not to the Bay View Street frontage, but to the roof form in the centre of the site, further to the east.

124. In formulating its satisfaction in respect of a written request seeking to justify a contravention of the height standard, the Court stated that “the proportion of height variation that is granted in this consent is determined by the conditions of consent, specifically A2”.

125. As I understand it, the Court at the time considered Condition A2 only as far as it assisted to clarify the proportion of the exceedance sought.

Conclusion

126. While I find the modification application to be substantially the same development as the development for which consent was granted, on the basis of the public submissions and consideration of the degree of impact caused by adopting the parapet height of RL 22.60, I conclude so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided, Condition A2 should be modified to reflect my finding at [110]-[111].

127. Section 4.55(8) of the EPA Act enables the Court to modify a consent granted by it. Accordingly, Condition A2 is to be modified in the following terms:

“The following design amendment must be made to the drawings referred to in condition A1:

The overall roof ridge height and surrounding parapet for the structures at Bay View Street level comprising the car lift, visitor’s car space roof over and pedestrian entry lift and stairwell are not to exceed a maximum RL of 22.30.

Plans and elevations demonstrating compliance with this condition MUST BE submitted to the Certifying Authority for approval prior to the issue of any Construction Certificate.

(Reason: To ensure views are preserved to surrounding properties).”

128. Finally, I note the Applicant has provided evidence of compliance with my orders at [13].

Orders

129. The Court orders that:

1. The appeal is upheld.

2. Development Consent No. DA55/19 is modified in the terms in Annexure A.

3. Development Consent No. DA55/19/2 as modified by the Court is Annexure B.

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

……………………

T Horton

Commissioner of the Court

Annexure A (136899, pdf)

Annexure B (439166, pdf)

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Decision last updated: 12 October 2021