Modog Pty Ltd v North Sydney Council - [2018] NSWLEC 1160

Land and Environment Court

New South Wales

Medium Neutral Citation: Modog Pty Ltd v North Sydney Council [2018] NSWLEC 1160
Hearing dates: 10 and 11 January 2018
Date of orders: 29 March 2018
Decision date: 29 March 2018
Jurisdiction: Class 1
Before: Smithson C
Decision:
1. The appeal is dismissed.
2. Development Application DA 50/17 for demolition of an existing residential flat building and construction of a new residential flat building at 6 Thrupp Street, Neutral Bay is refused.
3. The exhibits are returned except Exhibits A, S and 4.

Catchwords: DEVELOPMENT APPLICATION – whether existing use; whether consent for a building means consent for its use; rebuilding residential flat building if existing use rights apply; assessment considerations if existing use; impact on neighbours; impact on streetscape and local area character; height, bulk and scale; solar access; privacy; view loss; neighbour objections; public interest
Legislation Cited: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Land and Environment Court Act 1979
North Sydney Local Environmental Plan 2001
North Sydney Local Environmental Plan 2013
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
State Environmental Planning Policy No. 10 - Retention of Low Cost Rental Housing
State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development
Cases Cited: BYT Nominees v North Sydney Council (2008) 161 LGERA 77
Dosan Pty Limited v Rockdale City Council [2001] NSWLEC 252
Fodor Investments v Hornsby Shire Council [2005] NSWLEC 7
Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760
Mona Vale Pty Limited v Pittwater Council (2003) 124 LGERA 449
Project Venture Developments v Pittwater Council [2005] NSWLEC 191
Shire of Perth v O'Keefe (1964) 110 CLR 529
Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587
Tenacity Consulting v Warringah [2004] NSWLEC 140
Texts Cited: North Sydney Development Control Plan 2013
Apartment Design Guide
Category: Principal judgment
Parties: Modog Pty Ltd (Applicant)
North Sydney Council (Respondent)
Representation:
Counsel:
Mr M Staunton, barrister (Applicant)
Solicitors:
Swaab Attorneys (Applicant)
Mr S Kondilios, Hall & Wilcox Lawyers (Respondent)

File Number(s): 2017/150988
Publication restriction: No

Judgment

COMMISSIONER: This is an appeal lodged under then section 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of development application DA 50/17 (the application) by North Sydney Council (the Council) for demolition of an existing residential flat building (RFB) and construction of a new RFB at 6 Thrupp Street, Neutral Bay (the site).
The first contention raised by the Council was that the RFB on the site did not have existing use rights and RFBs were a prohibited use in the zone. Therefore consent could not be granted to the application. However if this were proven to not be the case, and existing use rights were established, the Council contended that the development should be refused on merit grounds given adverse impacts on neighbours and on the low density area in which the site is located.

Background to the appeal

The application sought consent for demolition of an existing 1-2 storey building on the site containing 5 x one bedroom apartments and the construction of a new RFB with 5 apartments comprising 1 x two and 4 x three bedroom apartments over a basement car park containing an 8 car stacker, 1 visitor bay, bicycle storage and storage for the apartments. Associated site works and landscaping were also proposed.
The application described the new RFB as 3 storeys although it was also referenced at times as two storeys with a further ‘attic’ level’. That attic level contains all of proposed unit 5 which, albeit within the roof space, has 3 bedrooms, 3 balconies and 2.5 bathrooms. I therefore reference the attic level throughout this judgment as the third storey and the proposed RFB as 3 storeys.
The site is legally described as Lot 1 in DP543026, has a cross fall from north to south of some 1.2m, is generally rectangular in shape and has an area of some 658.9m². It is situated on the western side of Thrupp Street with an approximate 15m boundary to the street and rear and side boundaries of between 42.6m and 44.3m.
The properties in Thrupp Street between Aubin Street and Karraba Road, where the site is located, predominantly contain low density dwelling houses, other than multi dwelling housing at 2 Thrupp Street and RFBs on the corner of Kurraba Road and Thrupp Street.
The site is adjoined on its northern side boundary by three properties: the rear boundaries of 47 and 49 Aubin Street which contain semi-detached dwellings, part 1 and part 2 storey; and 8 Thrupp Street which is situated on the corner and contains a dwelling house which is also part 1 and part 2 storey.
On the southern boundary, the site is adjoined at 4 Thrupp Street by a single storey dwelling house with three townhouses comprising the multi dwelling housing at 2 Thrupp Street, the two closest to the street being 2 storey.
To the west, at the rear, the property is adjoined by a 2 storey dwelling at 45 Aubin Street. To the east, directly opposite the site, at 5 Thrupp Street is a single storey dwelling house.
The application was notified and 19 submissions were received from surrounding residents. The residents raised concerns with excessive height, bulk and scale, uncharacteristic built form, non-compliant building setbacks, site cover and landscaped area, adverse visual and noise impacts, loss of visual privacy, extensive overshadowing, the on-site parking, and traffic impacts.
The application was considered by the Council’s Design Excellence Panel who raised a number of concerns associated with overdevelopment of the site including non-compliance with height, setback and site coverage controls, the front setback not matching the established building line and side setbacks inconsistent with the required side setbacks in the area, unacceptable overshadowing and overlooking of adjoining properties, and excessive bulk being unsympathetic to the streetscape and to neighbouring buildings. The Panel also did not support the balconies and living areas facing side boundaries.
The application was subsequently amended in an endeavour to respond to these concerns, was re-notified and 23 submissions were lodged raising similar concerns to those raised with the original application.
The appeal was lodged in May 2017 and a Statement of Facts and Contentions (SFC) was filed by the Council with the Court. In response to these contentions, and following termination of a conciliation conference held under s34 of the Land and Environment Court Act 1979, the applicant received Leave of the Court in November 2017 to rely on amended plans addressing a number of contentions. An amended SFC in response to the amended plans was subsequently filed with the Court (the SFC - Exhibit 4).
There were eight contentions contained in the SFC. One, insufficient information, was addressed prior to the hearing. Another contended that the applicant failed to demonstrate that the site enjoyed existing use rights and therefore consent could not be granted. Five contentions related to the merits of the development namely; excessive bulk, built form character, overshadowing, visual privacy, and view loss. Finally the Council contended that the proposed application should not be approved having regard to the public interest given the matters raised in submissions received insofar as those matters coincided with the contentions raised by the Council.
The hearing commenced onsite where the Court heard from four adjoining neighbours from Thrupp and Aubin Streets who re-iterated the objections raised in their submissions. One objector also questioned whether the building had existing use rights and was concerned with increasing the density from 5 to 14 bedrooms. Further, that the amendments made to the application, such as increasing the front setback by reducing the rear setback, shifted but did not remove the impacts to neighbours. It was also argued that, if the development was in a high density zone, the design would be required to comply with the Apartment Design Guide (ADG) which protected neighbours.
Inadequate building separation and setbacks to neighbours, with consequent adverse impacts, was a common theme amongst those who addressed the Court, as was the height, scale and character of the proposed building relative to the low scale nature and height of the dwellings in the immediate vicinity. At least one neighbour indicated adverse impacts had already been experienced with alterations and additions to the RFB in 2003.
Two objectors also raised concerns with the impact on the sewer traversing the property whilst one focused on the traffic impacts from, and inadequacies of, the car stacker and from accessing the development from a narrow street.
The Court viewed the site and surrounds. A height pole had been erected to indicate the maximum proposed height of the new RFB albeit the Council was critical that a second pole should have been erected to enable a better appreciation of the extent of the development at that height.
The Court was accompanied by the parties including the planning experts, namely Mr Donovan for the Council and Mr Lovell for the applicant.
The site view examined the potential for view loss from, and amenity impacts on, 49 Aubin Street, on the privacy and amenity of 8 Thrupp Street, and on the overshadowing and privacy of and outlook from 4 Thrupp Street.
At the commencement of the hearing, Leave was sought and granted for the applicant to rely on further amended plans as now comprising the application. The amendments were minor, to correct plan inconsistencies identified by the expert planners, and not opposed by the Council. During the hearing, further amendments to the plans were undertaken as further inconsistencies were identified between the plans and the elevations (the Revision G plans – Exhibit S).
The parties agreed to conditions of any consent other than a proposed deferred commencement condition sought by the Council which required deletion of the third storey and increased side and rear setbacks.

Planning Framework

The site is located in the Low Density Residential R2 zone under the North Sydney Local Environmental Plan 2013 (the 2013 LEP) where the development of an RFB is prohibited.
However, the applicant claimed existing use rights applied to the existing RFB on the site and that consent to the application could therefore be granted.
Accordingly it is necessary to set out those provisions of the Act that provide for existing use rights. For ease of referencing the evidence and submissions, I have maintained the numbering of the Act as at the time of the hearing, rather than the new numbering of the same provisions in the amendments to the Act which took effect on March 1, 2018.
The term “existing use” as defined in the Act, is as follows:

106 Definition of “existing use”
In this Division, existing use means:
(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and
(b) the use of a building, work or land:
(i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and
(ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

If a development is determined to enjoy existing use rights as defined in s 106, the operative provisions stipulating the rights attaching to the existing use are contained in ss 107-109B of the Act. Section 107 states:

107 Continuance of and limitations on existing use
(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.
(2) Nothing in subsection (1) authorises:
(a) any alteration or extension to or rebuilding of a building or work, or
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or
(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or
(e) the continuance of the use therein mentioned where that use is abandoned.
(3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

Section 108 states that provisions can be made in the Environmental Planning and Assessment Regulation 2000 (the Regulations) to deal with existing uses. Section 108 also states that these provisions are deemed to be in every environmental planning instrument (EPI) as ‘incorporated provisions’.
Section 109 deals with continuance of lawful uses stating that uses which are lawful do not require subsequent consents if the use becomes prohibited. Section 109A deals with unlawful uses which can become lawful only if subsequently permissible and no consent is required or consent is subsequently granted. Section 109B applies to existing consents which are ‘saved’ from requiring further consents under new EPIs if they were lawfully granted. Such consents can be modified.
The following clauses in the Regulations are relevant incorporated provisions in terms of the application:

41 Certain development allowed
(1) An existing use may, subject to this Division:
(a) be enlarged, expanded or intensified, or
(b) be altered or extended, or
(c) be rebuilt, or
(d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or
(e) … .
42 …
43 …
44 Development consent required for rebuilding of buildings and works
(1) Development consent is required for any rebuilding of a building or
work used for an existing use.
(2) The rebuilding:
(a) must be for the existing use of the building or work, or for a changed existing use, but for no other use, and
(b) must be carried out only on the land on which the building or work was erected or carried out immediately before the relevant date..

The “relevant date” is defined in clause 39 of the Regulations as:

(a) in relation to an existing use referred to in section 106 (a) of the Act—the date on which an environmental planning instrument having the effect of prohibiting the existing use first comes into force, or
(b) in relation to an existing use referred to in section 106 (b) of the Act—the date when the building, work or land being used for the existing use was first erected, carried out or so used.

The site is located within the Neutral Neighbourhood to which the Neutral Bay Planning Area character statement applies under the North Sydney Development Control Plan 2013 (the DCP). The DCP also contains controls for residential development.
The Council contended that regard had to be had to the provisions of State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development (SEPP65) and the ADG which apply to RFBs notwithstanding the application was to rebuild an existing use.
In this regard, if existing use rights are established, then the proposed development is also not subject to the provisions of the LEP or the DCP. However, adjoining development is.

Preliminary issue – does the existing RFB have existing use rights?

The parties agreed that the site currently contains an RFB which is a prohibited use in the zone under the (current) 2013 LEP and that replacing the existing RFB with a new RFB is only permissible if it can be established that the current RFB has existing use rights. This issue was a threshold issue in the appeal.
The Court was therefore required to deal with the appeal in one of three ways:

Determine that the site had existing use rights for the purposes of an RFB and uphold the appeal on its merits thus granting consent to the application;

Determine that the site had existing use rights for the purposes of an RFB but dismiss the appeal on merits grounds thus refusing the application; or

Determine that the site did not have existing use rights in which case there was no ability for the Court to uphold the appeal or issue consent.

Background

Neither the Council nor the applicant had been able to locate any original consent for the use of the site as an RFB or indeed for the building on the site.
The existing building on the site has the appearance of a 19th Century cottage, converted at some point for apartments, with a later upper level extension to the rear, rather than a purpose built older RFB. However, there was no evidence to confirm when the building was built or for what purpose.
The only consent associated with the site that could be located was issued on July 14, 2003 when approval was granted by the Council to a development application (DA 17/03) for alterations and additions to the existing building on the site (the 2003 consent). These alterations and additions were undertaken in part in response to a fire safety upgrade order issued by the Council in 2002 on what was then described by the Council as ‘the existing RFB’.
The 2003 consent approved internal modifications and upgrade to the existing apartments, conversion of a 2 bedroom apartment and a studio into 1 bedroom apartments, a rear addition on the upper level to incorporate a stairwell, fenestration changes, and cement rendering of the building.

The Council’s submissions

Notwithstanding the 2003 consent, the Council submitted that the applicant had not established that the proposed development involves the rebuilding of a lawful RFB with existing use rights as required by cl 44 of the Regulations.
Specifically, the Council considered that the applicant had not demonstrated that the existing RFB was either lawful prior to an EPI which prohibited it (s 106(a)) or was a development for which consent had been granted before that use became prohibited and was thereafter carried out in accordance with that consent (s 106(b)) given no consent for the use of the site had been located. The onus was on the applicant to demonstrate s 106 was met.
In the absence of any development consent for the use of the site, the Council submitted that the applicant could not rely on the 2003 consent for building alterations or a presumption of regularity to demonstrate the existing RFB use was lawful.
The Council advised that the 2003 consent for the works in DA 17/03 was able to be issued as an ‘apartment building revision’ was a permissible use under the then LEP. That LEP was the North Sydney Local Environmental Plan 2001 (the 2001 LEP).
Under the 2001 LEP, the site was zoned Residential A2 and ‘residential flat buildings’ were not defined. However, that LEP contained specific uses defined as ‘apartment building’, ‘established apartment building’ and ‘apartment building revision’. Apartment buildings were not permissible in the zone. However, established apartment buildings and revisions to existing apartment buildings were, if the existing apartment building was lawful.
The relevant definitions from the 2001 LEP are as follows:

apartment building means a single residential building containing three or more dwellings but does not include attached dwellings.
apartment building revision means:
(a) the carrying out of alterations for the purpose of an apartment building, or
(b) the creation of a new apartment building within the envelope of an apartment building,
that lawfully existed on the appointed day.
appointed day: means the day on which this plan took effect.
established apartment building means an apartment building lawfully
in existence on the appointed day.

The Council accepted that the use of ‘apartment building’ in the 2001 LEP is the same as the use of an ‘RFB’ in the 2013 LEP and that the existing apartment building as at the (then) appointed day (June 1, 2001) must have been lawful for the Council to issue the 2003 consent.
However, it was argued that the 2003 consent only authorised the carrying out of works to the existing building comprising the alterations and additions applied for. It did not itself authorise the use of the existing building. Thus the 2003 consent itself was not a development consent for the use of the existing building under s 106(b) and could not form the basis for establishing the lawfulness of that use as required under paragraph s 106(a).
It was not in dispute that DA 17/03 was not an application for extension of an existing use rather it was for a permissible new use under the 2001 LEP being ‘apartment building revision’. Therefore the application did not need to rely on existing use rights as the form of development proposed was permissible at the time. As the 2003 consent was not issued on the explicit basis that the building had existing use rights, it remains necessary for the applicant to establish such rights, which it has failed to do.
Put another way, the Council submitted that the lawful existence of a building as an apartment building did not encompass the lawful use of the building for that purpose. The phrase ‘lawfully existing’ therefore refers to a building having been erected in a lawful manner but does not encompass that building’s use.
Reference was made to the definition of ‘development’ in the Act which separates ‘use of land’ and ‘erection of a building’ and to s 81A of the Act which deems a consent that enables the erection of a building to also authorises the use of the building once erected, but this linking of building erection and use did not exist prior to the Act.
Mr Kondilios also raised the issue of the appropriate categorisation of the existing use citing authorities which deal with this issue as follows:

In this regard, differing approaches have traditionally been adopted to characterization of an existing use depending on which paragraph of the definition in s 106 is engaged:
a.. if paragraph (a) is engaged and the lawful use is not derived from a particular development consent, the relevant principles of characterization are those articulated by Kitto J in Shire of Perth v O'Keefe (1964) 110 CLR 529 at 535;
b. if paragraph (b) is engaged and the lawful use is derived from the existence of a particular development consent, the purpose of the rights of use as authorized under that particular consent are determinative. (see e.g. Jojeni Investments Pty Ltd v Mosman Municipal Council'(2015) 89 NSWLR 760.

Mr Kondilios accepted that the use when the 2013 LEP took effect could be categorised as ‘flats’ rather than a specific number of flats, but maintained that approval to a building does not mean approval to a its use, referencing Jojeni Investments at [52]. He submitted that the applicant had not traced the use back in time through successive planning regimes to establish that the existing use was lawful on the commencement of the 2013 LEP and has continued to be so referencing BYT Nominees v North Sydney Council (2008) 161 LGERA 77 at [27].

The applicant’s submissions

The applicant’s bundle of documents (Exhibit K) includes extracts from the Sands Directory from 1929-1933 which refers to the building on the site as “Brierley Flats’ with numerous occupants all with different surnames suggesting the building comprised several flats separately occupied at least as early as 1929. This was prior to the requirement for development consent for a specific type of residential use of the site.
Exhibit K also contains Council rate notices from 1995 and then every year from 2002 to 2018 showing 5 garbage services were charged on the property suggesting the existence of 5 separate dwellings since at least 1995.
In minutes of a meeting kept by consultants, Paynter Dixon Constructions, held between the owner (now the applicant) and the Council on 18 March, 2003 it is stated that the owner advised the Council that he had purchased the site around 1960 and that no alterations had been made since then. In the Council minutes of the same meeting it states that the owner “purchased the building as a block of units in its current configuration”.
Furthermore, in assessing the 2003 development application, the Council had referred the application to the then Department of Urban Affairs and Planning (the Department) to obtain an assessment of the impact of the application on the low cost rental accommodation then provided on the site under State Environmental Planning Policy No. 10 – Retention of Low Cost Rental Housing (SEPP10). Paynter Dixon prepared a submission to the Department dated January 2003 advising that the site was occupied by a 2 storey building containing 5 sole occupancy units.
The Department could only have been required to provide the concurrence to the application because the Council determined that the use of the site was for a ‘low-rental residential building’ defined under cl 3A of SEPP10 as ‘a residential flat building containing a low-rental dwelling’ that at the time of lodging the (2003) development application was ‘lawfully used’ for such a purpose as required by cl 3A(3)(a)) of the SEPP. Concurrence under the SEPP at cl 7 was required to alter such a building and the Department would have had no role to play if an unlawful RFB was being altered.
The Department’s assessment under SEPP10 (summarised in a letter back to the Council dated June 27, 2003) noted that “the site contains a late 19th-Century cottage with later alterations and additions used as a residential flat building. It contains 1x2 bedroom, 3x1 bedroom and a bedsitter….The building is in good condition for its age, the kitchen and bathroom fitouts dating from the 1950s to 1970s”. Concurrence was issued by the Department to the application subject to conditions of consent fixing the rent of the units for a period of 3 years, these conditions then being imposed on the consent.
Irrespective of the absence of any consent for the erection of an RFB or for the existing use of the building for that purpose, the use of the site for its current purpose was either approved by the Council in the past, and the consent cannot be located, or was undertaken and the use commenced before there was any requirement under planning law to regulate the use of the building. In either case, the applicant therefore relies on these documents and actions by both the Council and the Department to establish the lawful use of the building based on a ‘presumption of regularity’: Dosan Pty Limited v Rockdale City Council [2001] NSWLEC 252.
To paraphrase Justice Lloyd in Dosan, the principle of regularity includes an act which can only be done legally by a public authority after the performance of some prior act, where proof of the latter (in this case the 2003 concurrence and consent) carries with it a presumption of the due performance of a prior act (ie the lawful creation of an RFB on the site). Both the Council in issuing a consent to alter the existing RFB and the Department in issuing concurrence to such alterations constituted evidence of public authorities acting on the assumption, or evidence, of a lawful existing RFB at the time.
The applicant advised that it was not relying on the 2003 consent as evidence of the existence of a use consent but rather that this was a consent which could only have been issued for alterations to the existing building on the site if the Council had first determined that the site contained a lawful apartment building at the time, being an ‘established apartment building’ as defined in the 2001 LEP.
In the absence of any consent that could be located for the use or erection of the building as an apartment building, the Council must have applied the presumption of regularity to determine the use was lawful as at time of June 1, 2001 being the appointed day. If it was lawful, it was an ‘established apartment building’ by definition which was permissible in the zone at that time but is not now, so existing use rights apply.
In the Joint Expert report of the planners (Exhibit 3), Mr Lovell references the Council’s Assessment Report on the 2003 application as stating: “Existing on the site is a two storey residential flat building with no off street parking”. He further notes that the 2003 consent contains a number of conditions in respect of the use of the apartments including restricting rent levels for “all of the units”. Mr Staunton also submitted that the approved 2003 plans clearly show the building’s use as apartments, detailing the layout of the apartments.
In summary, the applicant maintained that the 2003 consent issued by the Council for alterations and additions to the building, including for required fire upgrading works, under the then 2001 LEP constituted acknowledgement by the Council of the existing use as it could not have been granted as an apartment building revision if an apartment building did not ‘lawfully exist on the appointed day’ as required by the definition of that use. The requirements of s 106 had been met.
As it was lawfully used as an RFB on June 1, 2001 as an ‘established apartment building’ as was required for the 2003 consent to be issued when such buildings were permissible, and that use is not now permissible under the current LEP, it is an existing use for the purposes of the Act.

Findings on preliminary issue

It was agreed by the parties that the current use of the building on the site is as an RFB and that RFBs are prohibited under the current LEP. Therefore, for the building to be extended or replaced, it must first be established that existing use rights apply.
It was also not disputed that the use defined in the 2013 LEP as a ‘residential flat building’ is the same as the use defined in the 2001 LEP as an ‘apartment building’. Nor that such a use was permissible under the 2001 LEP if it met the definition of ‘existing apartment building’ or that the Council issued a consent in 2003 to extend the apartment building under LEP 2001 which could only have been issued if that building was lawful as an existing apartment building at that time.
Notwithstanding the numerous authorities referenced by the Council which deal in varying and sometimes apparently conflicting ways with determining the categorisation and lawfulness of existing uses, in my view only the following question needs to be answered in the affirmative in order to establish that existing use rights apply for the site to be used as an RFB:

Was the use of the site for an RFB lawful when the Council issued its 2003 consent and, if so, has it continued to be used for this purpose?

If so, when that use became prohibited under the (current) 2013 LEP it has existing use rights. If not, then existing use rights would not apply and consent cannot be granted.
On the basis of the evidence before me, I agree with the applicant that, for the Council to approve an expansion of the existing building on the site in 2003 as an ‘apartment building revision’, it could only have been done so having first determined that the use of the site at that time was lawful. The only way it could be lawful was if the Council accepted that the site was being lawfully used as an ‘established apartment building’ as defined in the 2001 LEP.
The Council argued that the consent in 2003 only approved alterations to a building and that the applicant cannot therefore rely on the 2003 consent as Council approving the RFB use. I disagree. The applicant was not relying on the 2003 consent as a use approval but rather as a consent for building alterations which could only have been granted if the Council determined that the site was lawfully being used as an RFB. It had to do this in order to issue the consent to alter the building.
The Council must also have had to be satisfied that the use as well as the building was lawful. By definition the development applied for at the time and approved was to revise an existing (ie established) ‘apartment’ building not to revise any other type of building on the site. The alterations were only permissible because of the specific existing use of the building, namely as an apartment building (now RFB), and the Council had to have accepted that use and that it was lawful.
I also find it difficult to accept, as did the applicant, that the Council would issue a fire upgrading order on the owner of the site to upgrade the building to comply with relevant fire requirements for an RFB if the Council considered that the building was being unlawfully used as an RFB. Rather, and Mr Donovan confirmed this, it would be more usual for the Council to deal with any unlawful use prior to issuing any such order. Mr Donovan also agreed that the Department would not have issued concurrence if the building wasn’t being lawfully used.
It was agreed that the 2003 consent was not issued on the basis that the RFB had existing use rights as the application proposed a use that was, then, permissible. However, that permissible, approved and subsequently continuous use of the site, which, as I have said, must have been lawful to enable the building in which it occurs to have been extended under the 2003 consent, then became prohibited under the 2013 LEP. It therefore has current existing use rights conferred on it by the coming into effect of the 2013 LEP.
By the Council’s own actions in issuing a consent in 2003 to allow alterations to the existing building on the site as a revision to an existing apartment building, the Council made the presumption of regularity in deciding that that existing building was a lawful ‘established apartment building’ which was the only use of the site for which the issued consent could have been based.
There is also no evidence that the Council has ever taken any action, even when EPIs prohibited an RFB use of the site, since 1929 to cease the use of the building for apartments rather, only endorsing such a use by requiring the building to be upgraded on the basis that this was its precise use.
Therefore, whilst the applicant has tried unsuccessfully through document and Council searches to establish when, prior to its known use in 2003, the existing building was first used as an RFB and whether this lawfully occurred at that time, this is not the determinative issue for establishing existing use rights in this instance. In this regard, I do not understand the utility or merit of the Council requiring such evidence nor for the applicant to have to establish a presumption of regularity in the absence of such a consent.
The need for this course of action by the applicant was overtaken by the Council’s actions in 2003. Either the Council issued, first an inappropriate fire upgrading order in 2002 and, secondly an invalid consent in 2003 because the existing building on the site was being unlawfully used as an apartment building (not the position argued by either party) or the Council made lawful decisions because the existing RFB was a lawful established apartment building, being the only basis on which a lawful consent could have been issued for the building to be altered as an ‘apartment building revision’. It would seem highly likely, and in the interests of both parties, that the latter occurred.
If the existing RFB was found to be lawfully existing at the time the 2013 LEP took effect and has continuously been used for that purpose, the existing use of the site for an RFB, otherwise now prohibited, was and remains lawful.
It does not matter if the site lost existing use rights when existing (established) apartment buildings becoming permissible under the 2001 LEP. If, at the time the 2013 LEP took effect, the building was lawfully being used as an apartment building, those rights were regained when that use, renamed an RFB, again became prohibited in the 2013 LEP. This is exactly what BYT concludes. It also contains a useful chronology of the permissibility of RFBs in the North Sydney low density residential zones prior, but not subsequent, to LEP 2013 taking effect.
I do not therefore accept the Council’s proposition that a lawfully existing apartment building doesn’t mean the lawful use of that building as an apartment building. It is either an apartment building, which means a building containing apartments (so used) or it isn’t. There is no proposition by the Council that the building was used for some other use, nor that the lawful existing apartment building could lawfully be used for any other purpose. As I have said, the Council issued a fire upgrading notice because the building was (lawfully) being used for apartments at the time and therefore had to be upgraded to reflect this use. In issuing the fire order itself, the Council either had a consent for that use at the time (now not locatable) or made the presumption of regularity that the existing apartment building/RFB was lawful.
No other use of the building could have been determined to exist without a different consent and consent could not have otherwise been issued for apartment building revisions. One must also look to the intent of including such a defined use, and the use of ‘established apartment building’ in the 2001 LEP to understand it was to recognise ‘lawful’ existing RFBs in zones where RFBs (ie new or unlawful) were and remain otherwise prohibited.
Acceptance of the existing apartment building having been erected, or in this case likely converted historically, clearly encompasses acceptance of that building’s use. Why erect, or convert a building to, an apartment building and then not expect or require it be used for that purpose? Does the Council suggest a use application is required to occupy a building so explicitly defined?
The need under the Act to obtain separate approval to use a building is clearly intended to apply only when the intended or final use of a building is not clear. That is not the case in this instance. The term ‘apartment building’ is implicit in its intended and lawful use and no further interrogation of its lawfulness to be used for the purpose, evident in the building’s description, is required.
There was also no dispute that the apartment building in existence on the appointed day was otherwise than an apartment building so defined in the 2001 LEP being a single residential building containing three or more dwellings that were not attached dwellings.
The numerous authorities referenced by the Council do not, in my view, assist the Council’s argument. On the categorisation issue having regard to Shire of Perth v O'Keefe (1964) 110 CLR 529 there was no suggestion that the use should be categorised as anything other than what it was and remains, namely flats in an apartment building now defined as an RFB. No other broader use or categorisation is argued, appropriate or necessary nor is it sought by this application.
In BYT Nominees, also involving North Sydney Council and the 2001 LEP definitions, Preston CJ only references the necessity to trace the use of a site to establish if it is lawful. As I have indicated, the decision of the Council in 2003 to accept that a lawful existing apartment building was on the site removed that necessity.

In Jojeni, the Court of Appeal (CoA) dealt with the appropriate description of an existing use where consent existed to convert a dwelling into two flats but the consent could not be located although that use remained. As in this case, the applicant sought to rely on existing use provisions as an RFB to replace the existing building with a new RFB. The CoA had to consider whether the use should be categorised as a building containing 2 flats or simply a building containing flats and therefore the impacts of rebuilding the RFB in terms of its size or number of flats. Of relevance the CoA’s decision addresses the level of generality in defining uses which, in summary, is that the appropriate level of particularity in that instance was for the purpose of a RFB rather than a building containing a certain number of flats noting there was no authority for the applicant to do anything on the site beyond continue the existing use of RFB in the existing structure until a proposal was approved on its merits [87].
Whilst I accept, as has this Court previously, that consent to use land does not preclude consent also being required for buildings on it associated with that use, the reverse does not always apply. That is, a consent for a building does not necessarily require a separate or subsequent consent for the use of that building if the intended use of that building is evident from the application and/or is explicit in the description of the building itself. Therefore, if an application is for an RFB and shows apartments in the RFB, as it must, it is evident that the use of the building being approved is also being approved, namely for apartment use. A separate consent to use the building for that purpose would be meaningless, nonsensical and duplicative. This is different to a consent to use say, factory buildings, being required where the specific use of each building is unknown and could impact considerations of factors such as parking or risk assessment. An apartment building cannot be used for anything except apartments unless a different use is applied for.
By including the word ‘flat’ in the use ‘residential flat building’, an application for a residential flat building is also an application for the use of that building and no other consent to use it for that constructed purpose is, or could reasonably be, required.
The use being intrinsic to the definition of the type of building that was agreed lawfully existed in 2003, there was therefore no necessity for the applicant to provide evidence of a specific separate consent for the use, albeit the applicant had endeavoured to find a record of such a consent.
Even without the Council’s 2002 fire order and the 2003 consent (and the Department’s concurrence) to alter the RFB, on the balance of probability that the use was lawfully established and continuous, and with no evidence of action taken since at least 1929 against the RFB use of the site by the Council, given the circumstances, I would find, based on a presumption of regularity, that the site has a lawful RFB on it.
The continued use of the building since the 2013 LEP took effect means that the building, and therefore the site, has existing use rights under the current LEP to be used for an RFB. It therefore has the development rights ascribed to such uses under the Act, and consent to rebuild that RFB can be issued, subject to a merit assessment of the application.

Consideration of merits issues

Overview

There are Court planning principles dealing with existing use rights and merit assessment. In particular, the principles to be considered when undertaking a merits assessment of a proposed development of a site with existing use rights were dealt with by Roseth SC in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71

17 Four questions usually arise in the assessment of existing use rights developments, namely:
How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?
While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment.
What is the relevance of the building in which the existing takes place?
Where the change of use is proposed within an existing building, the bulk and scale of that building are likely to be deemed acceptable, even if the building is out of scale with its surroundings, because it already exists. However, where the existing building is proposed for demolition, while its bulk is clearly an important consideration, there is no automatic entitlement to another building of the same floor space ratio, height or parking provision.
What are the impacts on adjoining land?
The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable.
What is the internal amenity?
Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally.

In Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 the planning principles in Fodor were considered and confirmed by Pain J. However, Her Honour states that care must be exercised in the application of the principles to ensure that there is not a de facto application of standards in environmental planning instruments as that is prohibited by (former) s 108(3) of the Act.
The Council argued that the principles in Fodor for the proposed rebuilding were applicable requiring a merit assessment under (then) s 79C of the Act, referencing Mona Vale Pty Limited v Pittwater Council {2003) 124 LGERA 449 at [24]-[31]. To the extent that the rebuilding involved an enlargement, expansion or intensification as permitted under cl 42, the same assessment would apply.
The Council contended that the proposed building had excessive bulk exacerbated by an inadequate rear setback and a third storey with the third storey incompatible with the established built form character along this section of Thrupp Street which is zoned for low density residential development. Therefore the first principle in Fodor was not achieved in terms of an acceptable relationship of the proposed development with the existing and likely future context in which it is located.
Mr Staunton submitted that the merit assessment needs to consider the 3 storey appearance, length of building including consequences of length in term of rear setback, impacts on neighbours – visual, bulk, views and overshadowing. However, he submitted that most development has impacts, the question is, are they reasonable? He referenced Project Venture Developments v Pittwater Council [2005] NSWLEC 191 where an existing use RFB in a low density residential zone was considered to be compatible with despite not being the same as surrounding low density development as it was considered to be in harmony with that development. This was despite not having the same density, scale or appearance (as surrounding buildings).
Should the Court grant consent, the Council requested the imposition of a deferred commencement condition (the DCC condition) which, after excluding modifications agreed by the applicant to be included as operational conditions of consent, required the following amendments to the development:

The attic level of the building is to be deleted and not approved in any form.
The first floor level of the building including the western balcony must be setback a minimum of 12m from the rear (western) boundary of the site.
Units 3 and 4 on the first floor level of the building are to be reconfigured consistent with b).
The first floor level is to be setback a minimum of 2200mm from both the northern and southern boundaries of the site.
The roof form of the building is to be amended accordingly consistent with a) to d).
The ridge height of the building must be no greater than RL41.99.
The foyer on the ground floor of the building must be setback a minimum of 1500mm from the northern boundary of the site with a minimum of four (4) additional Resilience Lilly Pillys to be planted within this setback area.

The reason for the DCC was stated by the Council to be to reduce the bulk and scale of the building to ensure greater compatibility with nearby dwellings within the low density residential zone. The reduction in the height and length of the building would assist in reducing privacy, solar access and view impacts for adjoining properties.
The modifications proposed by the DCC were opposed by the applicant. However, during the hearing, the applicant presented plans showing a redesign which could be undertaken in response to the proposed DCC (the Exhibit Q plans).
In this regard, Mr Lonegan, the applicant’s architect, gave oral evidence on the Exhibit Q plans in which he advised how the ridge could be lowered with design changes by some 600mm, the roof elements redesigned to introduce dormers and the length of the building shortened by some 3m with upper levels some 11.5m from the rear boundary. In further evidence he advised the length of the ridge could be reduced from 23.5m to 14.5m. The Exhibit Q plans were agreed to demonstrate a less bulky or extensive ‘third storey’ and a more conventional roof form.
Mr Staunton submitted that, if the Court were not of a mind to approve the application before it, the applicant would seek to amend the application to reflect the Exhibit Q plans or a consent including the proposed DCC. The application and preference remained however for the development in accordance with the Exhibit S plans.
Whilst Mr Donovan agreed the Exhibit Q plans were an improvement, they still didn’t achieve what he was seeking from the DCC and were therefore still unacceptable. The DCC requires the entire upper level removed as the side dormers would otherwise still be seen from locations in Thrupp Street and he was concerned at the possible internal amenity impacts for the rooms on that level as they would need adequate light and ventilation. Mr Lovell agreed the Exhibit Q plans were a better scheme, with dormers, but he agreed that internal amenity considerations would need to be addressed.

Rear setback

The proposed RFB is setback a minimum of 6.04m from the rear boundary whereas the existing RFB is setback 9.04m. Mr Donovan argued the proposed reduced rear setback was not characteristic of, being substantially less than, the rear setbacks of dwellings on adjoining properties fronting the western side of Thrupp Street with 2 and 4 Thrupp Street having rear setbacks of 9-12m.
Therefore, he argued, the proposed building is significantly longer than the existing building on the site which, along with the proposed height, contributes to its bulk and has adverse amenity impacts for adjoining properties. These impacts to neighbours include unreasonable overlooking and overshadowing.
Furthermore, the second storey of the existing RFB is setback a minimum of 21m from the rear boundary whilst the third storey component of the proposed RFB is only setback a minimum of 7.6m, with balconies then extending to within 6m of the rear. The size of this level has impacts in terms of solar access, privacy and views.
In Mr Donovan’s opinion, the dwellings at 47 and 49 Auburn Street had primary frontage to Auburn Street and should not be relied upon in order to demonstrate that the proposal maintains a characteristic rear setback relative to them. In any event, he considered these dwellings to be sympathetically designed to minimise any unreasonable amenity impacts.
However, Mr Lovell noted that the DCP does not contain any rear setback controls requiring only that rear setbacks match those on adjoining properties or, if adjoining properties are not characteristic, with setbacks identified in the relevant character statement. In this regard the relevant character statement did not identify a rear setback requirement.
He advised that the rear setback of the proposed building had been determined by reference to the surrounding subdivision pattern and consequent development in the locality including on all common boundaries, that is, to the north, west and south, not just to the immediately adjacent properties in Thrupp Street. He contended that the rear setback is an appropriate response to the nature of surrounding development as it provides a reasonable transition between the alignment of buildings to the north and south whilst not unreasonably compromising the amenity of the adjoining property to the west.
He argued that the dwellings at 47 and 49 Auburn Street were relevant for the purposes of establishing an appropriate rear setback as could arguably be the properties further to the south fronting Kurraba Road. This is because 45 and 47 Auburn Street have common boundaries with the site which are effectively the rear boundaries of these properties. They have small rear setbacks of only 1-1.5 m from this boundary. The proposed development is not seeking such small rear setbacks.
Mr Lovell also submitted that 4 Thrupp Street could be reconfigured or extended in the future, as the rear of the dwelling is currently enclosed. The rear setback of the proposed development would not compromise the ability for this to occur and for an appropriate transition in rear setbacks to therefore be maintained.

Height and streetscape impacts

The proposed RFB has a maximum height, at its highest point, of 9.8m which is some 1.2m higher than the maximum height of the ridge line of the existing RFB on the site and 1.3m above the maximum height permissible in the zone, albeit that a height control does not apply to the application given it is to rebuild an existing use.
The existing properties in the R2 zone along Thrupp Street between Aubin Street and Kurraba Road predominantly contain low density detached and semi-detached dwellings other than a multi dwelling housing development at 2 Thrupp Street which is also a maximum of two 2 storeys. It was acknowledged that some dwellings had upper level attics including 8 Thrupp Street but the owner of that property argued his attic windows were required to be designed to prevent overlooking.
Whilst the existing building on the site presents as a part 1, part 2 storey dwelling to Thrupp Street, the Council argued that the proposed building will present, in part, as 3 storeys to Thrupp Street and to adjoining neighbours. Development in the R2 zone is limited to 2 storeys with third level floor space only permissible as an attic.
The Council contended that the building, at 3 storeys and with the bulk and scale proposed, would therefore be incompatible with the established and desired built form character along this section of Thrupp Street zoned R2.
In contrast, what was proposed was not an attic room in the roof but would fully present as a 3 storey development which was an anathema to other development in the vicinity in the same zone. If built it would interrupt the cascading effect of 2 storey dwellings down Thrupp Street.
Mr Donovan submitted that the existing RFB presents to Thrupp Street as a dwelling house in character with the upper level setback minimising its streetscape impact relative to the proposed new RFB. He also argued that the proposed RFB extended considerably beyond the footprint of the existing building on the site and the upper levels of the proposed RFB would be significantly greater than any other building in the R2 zone. The new building would therefore visually dominate the adjoining low density dwellings and not be compatible with the dwellings on surrounding properties nor contribute positively to the low density context or character of this section of Neutral Bay contrary to the context and character principle of SEPP65.
In terms of the proposed height specifically, Mr Donovan argued that the rear part of the proposed RFB is significantly higher than the existing RFB on the site. The central ridge at up to 9.8m above existing ground level is 15.3% higher than the height permissible for adjoining development. This height would contribute to an excessively bulky building particularly when viewed from the adjoining properties to the north and south. Those properties could not be extended beyond 8.5m in height without being justified through a clause 4.6 request which he considered unlikely to be upheld given the potential impacts and requirements to meet zone and standard objectives.
The Council also contended that the building design did not respond to or follow the cross fall of the land which exceeded 1m further impacting neighbours in particular 4 Thrupp Street which was single storey. Thus the landform and low height of 4 Thrupp Street meant the third storey and bulk would be readily apparent travelling north ‘up’ Thrupp Street even if 4 Thrupp Street was developed to its maximum height. The proposed RFB was therefore considered to be contrary to a number of provisions of the DCP and design principles for RFBs of SEPP65 and to fail the first principle of Fodor.
Mr Kondilios also submitted that the Council had retained the low density zoning of this small pocket of development notwithstanding the higher density zoning and development surrounding it. The dwellings in it reinforced the cascading rhythm down Thrupp Street. The existing RFB building on the site was extended but only at the rear which maintained the appearance of a single dwelling. New development that had occurred, including extensions, such as at 4 and 8 Thrupp Street had also been sympathetic. To approve the proposed replacement RFB would result in a building that was anomalous in this setting.
He further submitted that other buildings in the same R2 pocket would have limited ability to substantially develop. Whereas the applicant referenced how complying development may occur in the pocket, this was not currently evident and the pocket of dwellings had largely been preserved.
Mr Lovell however, was of the opinion that the height, bulk and scale of the building was an acceptable response to the nature of surrounding development having regard to the existing use rights of the building and the form of development that can reasonably be anticipated on surrounding sites.
In this regard, Mr Lovell argued that extensions to existing dwelling houses or future dwelling houses could gain approval as complying development permissible without Council consent, referred to as CDC development, under State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.
A CDC dwelling house with a height of 8.5m would also have impacts to neighbours. Further, the proposed building had been designed with a predominantly 2 storey form with the additional third level accommodated within a relatively large roof space.
Mr Lovell was critical that Mr Donovan’s comments on possible future heights, and the likely fate of any clause 4.6 requests to increase this, as they were effectively based on applying the height control as a de facto development standard to the proposed RFB contrary to what is required as referenced in Stromness. He also stated that the width of the lot was such that it was not possible to provide a level change within the building having regard to the crossfall of the site, and he noted no other buildings in the vicinity provided such a level change. Further the ground floor of the proposed RFB was not on the highest portion of the site so regard had been had to site levels.

In terms of impact on the streetscape and character of the area, Mr Lovell accepted that there is a degree of consistency in the built form of Thrupp Street in the R2 zone which includes the site. However, he argued that this is a relatively small group of only 7 properties, some of which have been modified. He also stated that 2 Thrupp Street contained multi dwelling housing as a result of the existing use rights that applied to that site.
Mr Lovell considered that the appeal site should be considered in its broader context with land to the north on the opposite side of Aubin Street zoned R4 – High Density Residential and land to the south predominantly zoned R3 – Medium Density Residential.
Therefore, in Mr Lovell’s opinion, the locality is notable for the variation in building forms and architectural styles which largely reflect zonings. At any point along Thrupp Street in the vicinity of the site, he argued, there were relatively large RFBs within the visual catchment of the site albeit they were in different zones. Therefore the streetscape could accommodate some change in form and character without any individual building being visually jarring or incompatible with the streetscape character of the locality.
Mr Staunton also submitted that there were no issues raised in terms of the front setback and proposed landscaping and there would be expected to be a difference in scale between an RFB and dwelling houses. The proposed RFB had a pitched roof and the design had regard for its neighbours and the applicable controls in the zone. Further, habitable floor space was permissible at a third level in the zone albeit in an attic configuration. There was no reference to or requirement for the existing cascading of dwellings to be maintained in the streetscape and no evidence that it would be.

Overshadowing of 4 Thrupp Street

The property at 4 Thrupp Street contains a single storey older dwelling with an enclosed rear section and with primary living areas facing the northern side boundary which is the common boundary with the site.
In the SFC (Exhibit 4), the Council contended that the proposed building would unreasonably overshadow the primary living spaces of 4 Thrupp Street. This would contradict the aims of the LEP, the objectives of the R2 zone and the solar access provisions of the DCP.
The planning experts in the Joint Expert Report (Exhibit 3) agreed that the rear private open space of 4 Thrupp Street would receive reasonable solar access during mid-winter. However, Mr Donovan believed there would be unreasonable overshadowing of the northern dining/living room and kitchen windows, with elimination of all solar access in mid-winter when these windows currently receive a reasonable level of solar access during mid-winter. This was a consequence of the height and setbacks of the proposed development, including what he expressed as the excessive height and length of the central ridge of the roof and the design of the attic, dormers and lift which in part are higher than 8.5m.
Given the proposal failed to maintain solar access to any north facing habitable room windows of 4 Thrupp Street, Mr Donovan was of the view that Principle 3 of Fodor was not met and that if any cl 4.6 was lodged for a such a breach it would not be well founded given the unreasonable overshadowing impacts to an adjoining property.
Mr Lovell argued that 4 Thrupp Street contained a single storey dwelling with an unusual modified layout in that the rear of the dwelling had been enclosed for storage restricting access between living areas and the rear yard. Further, the kitchen and living rooms are not integrated. This layout is such that the openings to the north are highly vulnerable to overshadowing from a building on the site and trying to maintain 3 hours of sunlight to these windows is a significant and unreasonable constraint to the appeal site irrespective of the RFB being an existing use. This is because the windows are only 1.5m from the common side boundary. As a consequence solar access in mid-winter is lost to all 4 of the north facing windows of 4 Thrupp Street. Currently the windows get full sunlight from 3pm onwards and partial sunlight between 12 noon and 3pm in mid-winter.
Mr Lovell also noted that these windows would still receive good solar access for 9 months of the year. He also argued that even a CDC new dwelling house with a height of 8.5m and compliant side and rear setbacks of only 1.2m and 8m respectively would result in overshadowing of these windows between 10am and 3pm in mid-winter. In contrast, the proposed RFB had twice the southern (side) back at 3m and increased rear setbacks at upper levels.
Mr Donovan indicated he could not confirm this was the case as a CDC compliant scheme had not been provided. However, he accepted some overshadowing impact would occur from such a scheme.
Mr Lovell re-iterated that he considered 4 Thrupp Street would also likely be reconfigured or extended in the future given the unusual circumstances of the existing dwelling. In the event that this occurred, and a more conventional layout resulted, then the dwelling would achieve an appropriate level of solar access as well as a materially improved relationship between indoor and outdoor spaces. For example, if the rear was not enclosed, from 10.30am onwards in mid-winter, solar access would be possible into the living areas of No. 4. He accepted however, that any good design of No. 4 would likely have windows facing north.
Mr Lovell also reiterated that reference to a likely clause 4.6 outcome is not relevant as the height control requiring a clause 4.6 request does not apply.
Mr Staunton submitted that the dwelling at 4 Thrupp Street was vulnerable as it relied on all solar access through side windows as a result of the rear enclosure. Further, that shadow cast by the existing RFB already impacted these windows by the afternoon in mid-winter and the additional height of the ridge was not adding to the overshadowing of these windows at that time.
It was agreed that the amendments proposed in the Exhibit Q plans would likely improve the overshadowing impacts. However, Mr Donovan was not persuaded by preliminary analysis shown during his evidence of what the revised overshadowing impacts would be and believed they remained unacceptable.

Visual privacy for adjoining properties

In the SFC (Exhibit 4), and related to the concern about setbacks, the Council contended that there was inadequate separation proposed between a number of the side windows and the side/rear balconies of the proposed RFB and existing dwellings on adjoining properties, resulting in an adverse impact on the visual privacy of these adjoining properties. This would be contrary to planning principle 3 of Fodor.
Specifically, Mr Donovan argued there would likely be direct overlooking of the southern kitchen window of the dwelling at 49 Aubin Street, the entry and southern bedroom window of 8 Thrupp Street, and the existing rear private open space of 4 Thrupp Street as well as any future northern windows of a possible second storey to the dwelling at 4 Thrupp Street. Further, proposed planter boxes would only add to the building bulk without providing effective privacy.
He contended that if the RFB was proposed in a high density zone and the ADG and SEPP65 applied, the development would not meet the amenity principle of maintaining good privacy levels for neighbours in SEPP65 or the required boundary setbacks in the ADG. In this regard, habitable rooms with northern and southern windows are located significantly less than 6m from a side boundary.
Mr Lovell argued that the architect had sought to minimise potential overlooking to the north and south with the proposed planter boxes which were raised and adjacent to the windows of concern. However, he accepted additional privacy measures were required in some instances. He proposed a mixture of additional planter beds and privacy screens be fixed to a number of windows and/or balconies which were designed so that sunlight to the RFB from the north could be retained but the potential for overlooking limited. He also indicated that two small south facing balconies at the third storey level could be removed although he did not consider this was essential from a privacy perspective.
With the changes he suggested, which the applicant had agreed to and were reflected in the Revision S plans, Mr Lovell considered that an appropriate level of privacy could be maintained to surrounding properties. Specific conditions of consent also agreed to by the applicant require vertical fixed angles louvres to be provided to a number of windows and to two balconies to enable sunlight access to apartments but prevent overlooking to both 4 and 8 Thrupp Street. Mr Staunton submitted that these agreed conditions addressed all of the Council’s remaining privacy concerns.
However, Mr Donovan argued that, if the amendments he required as outlined in the DCC were undertaken and the building ‘pulled back’ 12 metres, privacy screens may not be required and design changes may have different impacts in terms of the potential for overlooking of 49 Aubin Street. If consent was granted in the absence of the DCC, he would suggest no balconies at the upper level and fixed sill heights, or obscure glass, for windows with potential for overlooking. His main concern was the upper two levels of the southern elevation both in terms of potential for overlooking and bulk.
There was some discussion on further modifications being undertaken if the Exhibit Q plans were supported including the planting within planter boxes, use of fixed sill height windows, and privacy screens. The material of the proposed screens was acceptable to the Council.

View loss to 49 Aubin Street

The dwelling house at 49 Aubin Street currently has district and city views from its upper levels across the site. These include city and harbour views from southern window of the upper level master bedroom The Council contended that the proposed RFB would eliminate these views contrary to the provisions of the DCP and of the view sharing principles found in Tenacity Consulting v Warringah [2004] NSWLEC 140.
The experts agreed that it was unrealistic to expect the retention of views from the southern dining room window of No. 49. However, Mr Donovan considered that a more skilful design could retain some of the view from the master bedroom. He accepted the view loss was only from a bedroom but noted this was the only location in the dwelling where a significant view is available and it was reasonable in the site circumstances and given the zoning of the site to at least share part of this view.
The DCC proposed by the Council was aimed at trying to retain some of the existing views from the bedroom of No. 49 by reducing the height and length of the rear ridge and building.
Mr Lovell argued that some of the view in question was already largely blocked by vegetation at the rear of properties further south in Kurraba Road and this vegetation will eventually block much of the view unless it is trimmed or removed. Further, to retain this view, the rear portion of the proposed RFB would need to be restricted to single storey effectively west of where the existing second storey of the current RFB is which is some 25m from the rear boundary. This would be an unreasonable constraint on the development of the site irrespective of its existing use rights.
By his analysis, Mr Lovell concluded that any building above 5.5m at the rear would result in total view loss and the redesign sought by the deferred commencement condition would not assist. Only a different design may retain some view. However, he argued, a more skilful design would not achieve the same level of amenity for the proposed RFB requiring a very substantial reduction in the size of the building with some 50% of its depth restricted to single storey. Finally, a CDC compliant dwelling house on the appeal site would obstruct the same view.
Mr Staunton also submitted that Tenacity did not give a lot of weight to view loss from bedrooms or across side boundaries, the latter because, to do so, would unreasonably sterilise development of adjoining properties. That is the case in this instance where retaining the view would not permit development of an adjoining property where one would expect development to occur.

Public interest and other resident issues

The expert planners agreed that any traffic or parking issues would not warrant refusal of the application. There is no current parking provided for the existing RFB so what is proposed improves that situation. Further, conditions were proposed to control the noise and operation of the car stacker.
The parties also agreed that the sewer could be re-aligned to accommodate the development and could not proceed without approval from Sydney Water to such a re-alignment. A condition requiring this approval was agreed.
The experts also agreed that, subject to the Court having regard to the objectors’ concerns, if the Council’s contentions are satisfied, that there were no matters of public interest that would separately arise.

Findings on merits issues

Having determined that the application could be approved as it constitutes alterations and additions to an existing use, I am now required to determine if the application ought to be approved on its merits.
As indicated, there are Court planning principles dealing with existing use rights, in particular, the principles to be considered when undertaking a merits assessment of a proposed development of a site with existing use rights, being those in Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71 as confirmed in Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587.
The application seeks to replace the existing RFB with a new RFB. Having regard to the planning principles found in Fodor and Stromness, and for the reasons that follow, I have concluded that, based on a merit assessment, the application ought not to be approved.
The existing RFB is not a purpose built RFB, or at least does not present to the street as such as one understands such buildings present, including older style RFBs. In this regard, the form and appearance of the existing development, irrespective of its use, is of a large older style cottage, with later extensions, which is not dissimilar to the character of the dwellings in the R2 zoned portion of Thrupp Street in which the site is located.
It is proposed to replace that building with a new building. Attempts have been made, such as in the roof pitch and upper level front setbacks, to respect the character of the street rather than proposing a contemporary RFB design. However, the resultant building is still of substantial bulk relative to the existing RFB on the site, and to its neighbours.
Whilst I accept that there are taller, bulkier RFBs within the visual catchment of the site, these buildings are in higher density zones where a number of such buildings could be expected. They do not disrupt the existing streetscape character of the dwellings in the small pocket of R2 zoned land in which the site is located.
As Mr Kondilios submitted, the site view was instructive in understanding the relatively unique nature of development in this low density pocket and the potential for impact on adjoining properties from further development of the site.
In particular, the site is constrained by the close proximity of its neighbours of which five share a common boundary and where the dwellings are built close to common boundaries to the extent that privacy, outlook, views, and solar access are already constrained between the existing dwellings in terms of their living areas and private open spaces. Such a context is not conducive to facilitating an expansion of the building envelope or height of the existing RFB albeit such an expansion is permissible with consent under the existing use provisions the site enjoys. The merit assessment required by Fodor must be considered in this context.
The first principle of Fodor requires me to consider how the bulk and scale of the proposal relate to what is permissible on surrounding sites. This is because, while planning controls such as height, floor space ratio (FSR) and setbacks do not apply to sites with existing use rights; they still have relevance to the assessment of the application. As expressed in Fodor, this is because the controls applying to surrounding sites indicate the kind of development that can be expected if and when surrounding sites are redeveloped and the relationship of new development to its existing and likely future context is a matter to be considered in all planning assessments.
I accept the controls vary for the higher density zones not a significant distance from the site. However, the bulk and scale of the proposed development in this instance has the most impact on the neighbours which immediately adjoin the site and are opposite in the vicinity. These properties are all in the R2 zone and, in my view, the R2 controls are therefore the appropriate controls to consider.
The first of these controls is height. The immediately surrounding (including adjoining) properties all have a maximum permissible height of 8.5m.
The existing RFB on the site does not exceed the height limit of the adjoining properties but is close to that height limit of 8.5m. Albeit the existing use rights conferred on the site exempts the development from compliance with zone controls, I see no basis for allowing a redeveloped RFB to exceed the height of the existing RFB or the control where it causes adverse impacts to neighbours, notwithstanding that a clause 4.6 request is not required to justify the proposed height.
The impact of the proposed height is compounded by the proposed rear and side setbacks. The setback controls for the R2 zone assume no RFB or multi dwelling housing development in the zone as such higher density housing is prohibited. The setbacks are therefore those applicable for dwelling houses or lower density housing up to 8.5m in height. It is the case that a number of the adjoining dwelling houses whilst complying with the height control do not comply with the side or rear setback controls. This exacerbates the impacts the proposed new RFB would have on its neighbours.
In particular, the appeal site adjoins the rear boundaries of three dwellings and the side boundaries of two others but the dwellings of the properties adjoining Aubin Street are not oriented or constructed to reflect the current required setbacks. It is the case that any future redevelopment or extension of these dwellings would have to comply with the setbacks or gain consent to vary from them but, as they exist, they are in close proximity to the site.
Partly for this reason, I cannot conclude that the bulk and scale of what is now proposed has acceptable impacts on the amenity of neighbours albeit I accept that these impacts are, at least in some instances, the result of how neighbours have developed their properties or altered their dwellings.
These impacts arise from the length, height and extent of the proposed RFB which exceeds the length, height and extent of the existing RFB on the site. The impacts are in terms of overshadowing, privacy, outlook and view sharing.
Whilst the applicant argued, and I accept, that an application for a compliant house could be developed to a maximum height of 8.5m on lesser setbacks also with potentially adverse impacts, and without the requirement for Council consent to require impacts be mitigated, there was no evidence that this was a likely scenario or of what those specific impacts were. To the contrary, there was evidence from neighbours who had undertaken extensions to have to have regard to impacts such as in the design and location of attic windows.
Removing an existing building that appears as a large single dwelling house in character with the street, albeit used as an RFB, and replacing it with a purpose built RFB of a greater height, bulk and scale within the confines of the low density low scale built form context in which the site is located will, as the applicant acknowledged, have impacts. At least one neighbour indicated adverse impacts had already been experienced with alterations and additions to the RFB in 2003.

Whilst the existing use rights applying to the site means any redevelopment of it does not have to comply with the applicable planning controls, it does have to be compatible with what surrounds it and it must be assessed under (then) s79C of the Act, as Stromness found. This includes having regard to both the impact on the built environment and the suitability of the site for the development. In this instance, and notwithstanding the existing use rights permit it, I find that the site is not suitable to rebuild the RFB in the manner proposed because of the impacts that the intensified rebuilt RFB would have.
The fact that there may be high rise surrounding the pocket and visible from much of it does not negate the lower scale character of the existing development, primarily older cottages, within this retained pocket of R2 zoned land. Nor does it have relevance to the need to consider the impacts of the development on its immediate neighbours.
The applicant sought to rely on Project Venture to demonstrate that the proposed development did not have to be the same to be compatible if it was capable of existing together in harmony with neighbours even with a different density, scale or appearance. This is true. However, in Project Venture, Roseth SC noted that, as the difference in these attributes increases, harmony is harder to achieve [22]. The two major aspects the then Senior Commissioner considered were physical impact (overshadowing and overlooking) and visual impact. Further, he noted that the most important contributor to urban character is the relationship of built form to surrounding space, a relationship that is created by building height, setbacks and landscaping. In addition, the extent to which height differences are acceptable depends also on the consistency of height in the existing streetscape.
Having regard to all of these key factors, I do not find the proposed RFB to be compatible.
In the first principle in Fodor, it is also relevant that Roseth SC referenced the existing context and likely future context rather than emphasising a possible future context. The applicant, in this appeal, has some reliance on a possible future context whereby adjoining existing properties are the subject of CDC approvals and are redeveloped or extended to the maximum controls but are all compliant with those controls. Whilst this may be a possible outcome, I do not consider it to be a likely outcome particularly given the site view indicated the contrary with the character of existing cottages in this R2 pocket largely preserved and viewed extensions generally compatible with this character.
I also do not accept that any dwelling house would have the same envelope or impact. Whilst it may have lesser side setbacks, it would be confined to a maximum height of 8.5m unless a further height was justified to the Council under all of the tests required for a variation under clause 4.6 of the LEP. It would also require a greater ground floor rear setback.
It is also relevant that Project Venture references front and side setbacks but, in the circumstances of this appeal, it is also the rear setback which is important given the number of neighbours proximal to it and therefore impacted by any new development in that setback. I appreciate the applicant has sought to respond to the desire for a consistent front setback in the streetscape by amending the application to achieve this. However, the result has not been to reduce the length of the building but to instead reduce the rear setback with consequential adverse impacts to adjoining properties.
There was also no evidence on the extent of that impact in terms of view loss, outlook, overshadowing, or privacy relative to a lesser rear setback but there was agreement that the greater the rear setback, the lesser the likely impact to neighbours.
Whilst there are no applicable rear setback controls, from the evidence provided, including aerial photographs, no other dwelling in the R2 zone fronting Thrupp Street utilises the extent of the rear yard as is proposed in this application nor goes as close to the rear boundary. The Council’s concern with the proposed rear setbacks was with the visual bulk, overshadowing and view loss particularly impacting on the outdoor areas and internal spaces of 47 and 49 Aubin Street with the proposed development extending beyond what is a characteristic rear building line for properties fronting Thrupp Street. I share those concerns.
Even the redevelopment for multi dwelling housing at No. 2 (also an existing use development) maintains a greater rear setback than is proposed and, like the site, is adjoined by the rear of properties fronting another street. However, that development maintains a greater separation from those properties at a lesser height.
As I acknowledge, part of the reason for the impact of the proposed development is the close proximity of the dwellings at 47 and 49 Aubin Street to their rear boundaries. Whilst I understand the applicant’s criticism that these properties orientate their living spaces to borrow amenity from the rear of the appeal site, and have themselves a minimal rear setback (which is to the appeal site), they exist and it is reasonable to expect that a reasonable level of amenity is retained to their living and private open spaces.
Furthermore, 45 Aubin Street adjoining to the rear has a reasonable rear setback and, accepted by Mr Lovell, the greater the rear setback the lesser the adverse impacts on 45 Aubin Street. It is also the case that a CDC dwelling on the site would have at least a 2m greater rear setback than what is proposed.
In terms of the loss of city views for 49 Aubin Street, these views may only be from a bedroom and across a side boundary (although it is the rear boundary of No. 49). However, they are existing significant views and the only such views from that property. The total loss of the core city view as a result of the proposed RFB is an impact that should be avoided or at least designs considered which minimise the loss and retain some element of it or demonstrate why that is not possible. It may be the case that any retention of the view is not possible by any reasonable redevelopment of the property but that was not demonstrated in evidence.
The same can be said for the overshadowing impacts to the living room windows of 4 Thrupp Street albeit I accept that the adverse impacts are compounded by how that dwelling has been modified and relies on solar access across a side boundary rather than what could otherwise be achieved from the rear.
The legal ability to rebuild an existing use should not give rise to an assumption that such a use can be expanded or intensified. It could be rebuilt for other purposes such as structural adequacy or poor internal amenity. I suggest therefore that the reverse assumption should apply. Rebuilding involving an expansion or intensification of a use and an increase in the building envelope, including height, to accommodate that use can and should at least not increase adverse impacts to neighbours when that rebuilding is not required by any failing in the existing use, in terms of safety or maintenance, or the like. There was no suggestion that there was such a need to rebuild. The benefit to the applicant of the proposed RFB may only be the same number of apartments but they are substantially larger in terms of number of bedrooms resulting in the increased height and floor space proposed.
The only benefit to neighbours of the rebuilt RFB (the proposed additional parking not seen as a benefit by those neighbours) is that the proposed RFB increases the southern (side) setback of the existing RFB from 1.5m to 3m. However, the proposed RFB has a greater height, bulk and scale.
In contrast, the existing RFB is commensurate in character and height with what is around it or could be approved, albeit it is larger in bulk and scale than the adjoining cottages as one would expect given it is an RFB and not a dwelling house. It is therefore compatible with the existing streetscape.
Examples provided of upper level extensions to dwellings in the R2 pocket, such as at 8 Thrupp Street, included rooms in the roof which do not read as additional storeys. No’s 2, 4 and 8 Thrupp Street are all essentially single storey or have upper level dormers. Whilst this form and character may not be retained given the controls allow extensions or new development up to 8.5m in height, as I have already indicated, there was no indication of this happening. Whilst I accept, and the applicant contends, it could, such development has not happened in this R2 pocket to date and there is equally an argument that it may not to any extent and the existing prevalent character of the older style cottages is instead retained.
Furthermore, existing dwellings in the R2 zone, if extended or redeveloped other than as CDC development, will have to address and respond to the same constraints as apply to this application given the proximity and orientation of adjoining dwellings.
The proposal represents a significant increase in floor space in a sensitive location given the proximity to dwelling houses, the size of adjoining lots and the nature and location of development on them. The proposed RFB is not only higher than the maximum height of what exists now, and what the surrounding controls envisage, but it extends for significantly more of the building than the maximum existing height which is only to the top of the existing pitched roof.
Mr Lovell accepted that other RFB designs could result in less bulk and scale and would probably result in a better outcome but he also considered there could be worse outcomes. That is not an appropriate merit test. Mr Lovell also accepted reducing the extent of the ridge would reduce the impacts including how the development would be viewed from Thrupp Street. Whilst these views may be oblique, they would exist with the substantial new bulk of the side elevations proposed at the upper level.
The issue is not with the front elevation which includes design elements of the area. It is principally with the proposed new 3 storey side elevations and presentation which, given their length and extent, will be viewed from locations in Thrupp Street in the R2 zone. This bulk is not only atypical of the area but is not compatible, or in harmony, with that portion of Thrupp Street. By contrast the height, bulk and scale of the existing RFB on the site is.
This is not to say that some alteration or rebuilding of the existing RFB cannot be undertaken which may entail extensions at the rear which could still result in at least partial view loss impacts for 49 Aubin Street and a degree of overshadowing to 4 Thrupp Street given the circumstances of these properties.
However, providing such extensions were generally in accordance with the existing and likely, as distinct from possible, future nature of development in the vicinity and decreased the impacts, they could, in my opinion, be reasonably contemplated.
Finally, Mr Staunton requested, if I found the application not to be acceptable on its merits, that I make preliminary findings using the Court’s ‘amber light’ approach, that it may be acceptable subject to the amended drawings contained in Exhibit Q. He argued that these plans addressed the Council’s intent as reflected in their proposed deferred commencement condition of any consent. Alternatively, that I grant consent subject to the deferred commencement condition proposed by the Council.
However I am not persuaded, as Mr Donovan wasn’t, that the Exhibit Q plans address the Council’s concerns as to unreasonable impacts. Nor do they reflect all that the Council seeks in the deferred commencement condition. Furthermore, they are substantial modifications which have not been the subject of any neighbour notification nor of detailed expert analysis with regard to overshadowing, view loss, privacy or streetscape impacts. Whilst I do accept, as did Mr Donovan, that they appear to go some way to addressing a number of these concerns, I do not believe it appropriate to grant consent on the basis that they would likely result in a satisfactory outcome.
Similarly, the changes sought by the deferred commencement condition are substantial changes. I do not consider an appropriate approach or means of ensuring an acceptable development outcome for the site would necessarily be achieved by approving the development subject to the proposed deferred commencement condition which requires such significant design changes.
The application is refused accordingly.

Orders

The orders of the Court are:

The appeal is dismissed.

Development Application DA 50/17 for demolition of an existing residential flat building and construction of a new residential flat building at 6 Thrupp Street, Neutral Bay is refused.

The exhibits are returned except Exhibits A, S and 4.

__________________

Jenny Smithson

Commissioner of the Court

**********

Decision last updated: 29 March 2018

Medium Neutral Citation:	Modog Pty Ltd v North Sydney Council [2018] NSWLEC 1160
Hearing dates:	10 and 11 January 2018
Date of orders:	29 March 2018
Decision date:	29 March 2018
Jurisdiction:	Class 1
Before:	Smithson C
Decision:	1. The appeal is dismissed. 2. Development Application DA 50/17 for demolition of an existing residential flat building and construction of a new residential flat building at 6 Thrupp Street, Neutral Bay is refused. 3. The exhibits are returned except Exhibits A, S and 4.
Catchwords:	DEVELOPMENT APPLICATION – whether existing use; whether consent for a building means consent for its use; rebuilding residential flat building if existing use rights apply; assessment considerations if existing use; impact on neighbours; impact on streetscape and local area character; height, bulk and scale; solar access; privacy; view loss; neighbour objections; public interest
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 North Sydney Local Environmental Plan 2001 North Sydney Local Environmental Plan 2013 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 State Environmental Planning Policy No. 10 - Retention of Low Cost Rental Housing State Environmental Planning Policy 65 - Design Quality of Residential Apartment Development
Cases Cited:	BYT Nominees v North Sydney Council (2008) 161 LGERA 77 Dosan Pty Limited v Rockdale City Council [2001] NSWLEC 252 Fodor Investments v Hornsby Shire Council [2005] NSWLEC 7 Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760 Mona Vale Pty Limited v Pittwater Council (2003) 124 LGERA 449 Project Venture Developments v Pittwater Council [2005] NSWLEC 191 Shire of Perth v O'Keefe (1964) 110 CLR 529 Stromness Pty Limited v Woollahra Municipal Council [2006] NSWLEC 587 Tenacity Consulting v Warringah [2004] NSWLEC 140
Texts Cited:	North Sydney Development Control Plan 2013 Apartment Design Guide
Category:	Principal judgment
Parties:	Modog Pty Ltd (Applicant) North Sydney Council (Respondent)
Representation:	Counsel: Mr M Staunton, barrister (Applicant) Solicitors: Swaab Attorneys (Applicant) Mr S Kondilios, Hall & Wilcox Lawyers (Respondent)
File Number(s):	2017/150988
Publication restriction:	No