Sabharwal v Lane Cove Council

[2023] NSWLEC 1022

Land and Environment Court

New South Wales

Medium Neutral Citation:

Sabharwal v Lane Cove Council [2023] NSWLEC 1022

Hearing dates:

19-20 December 2022

Date of orders:

18 January 2023

Decision date:

18 January 2023

Jurisdiction:

Class 1

Before:

Bish C

Decision:

The Court orders:

(1)   Leave is granted to rely on plans described in condition A.1 of Annexure A.

(2)   The appeal is upheld.

(3)   Development Application DA48/2022 which seeks a rooftop terrace with lift access on Lot 6 in Deposited Plan 6768, also known as 19 Upper Cliff Road, Northwood is determined by the grant of consent, subject to conditions in Annexure A.

(4)   All exhibits are returned.

Catchwords:

DEVELOPMENT APPLICATION – amendments to deferred commencement condition of existing consent – rooftop terrace with accessible lift – acoustic and visual privacy amenity considerations

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 3.42, 4.15, 4.16, 8.7

Environmental Planning and Assessment Regulation 2021, ss 23, 38

Land and Environment Court Act 1979, s34AA

Lane Cove Local Environmental Plan 2009, cll 1.2, 2.3

Protection of the Environment Operations Act 1997

Cases Cited:

Zhang v Canterbury Council (2001) 51 NSWLR 589; [2001] NSWCA 167

Texts Cited:

Lane Cove Development Control Plan 2010

Noise Guide for Local Government, NSW EPA 2013

Category:

Principal judgment

Parties:

Sachin Sabharwal (Applicant)
Lane Cove Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
A Seton (Solicitor) (Respondent)

Solicitors:
Fortis Law (Applicant)
Marsdens Law (Respondent)

File Number(s):

2022/249245

Publication restriction:

No

Judgment

1. COMMISSIONER: This is an appeal against a deferred commencement condition imposed on consent of Development Application DA48/2022 (the consent) by Lane Cove Council (hereafter the Council) which seeks a rooftop terrace with lift access on Lot 6 in Deposited Plan (DP) 6768, also known as 19 Upper Cliff Road, Northwood (hereafter the site).

2. The applicant is seeking to delete deferred commencement condition M1 in the consent, as described below:

”M1. Deletion of the roof top terrace and redundant portion of the lift. The roof top terrace is to be deleted. Subsequently, the portion of the lift that services the roof top terrace is also to be deleted. The lift is to be restricted to the lower ground floor, ground floor and first floor. The amended plans are to be submitted to Council and approved by Council to satisfy M1.”

3. The applicant does not dispute the other deferred commencement condition (M2) as described in the consent, which relates to a noise assessment of the lift operation, and is therefore retained in the consent conditions in Annexure A.

Background to application and hearing process

4. Development Application DA48/2022 (the application) was lodged with Council on 2 May 2022, and after public notification, one submission in objection was received. The application sought to construct a rooftop terrace within the existing roof form and a lift to access all levels of the existing dwelling, including the proposed terrace.

5. On 2 June 2022, Council approved the application for the lift, except to access the roof, and also sought by deferred commencement condition for a noise assessment of the lift operation, which is not in dispute been the parties.

6. The applicant subsequently appealed against the deferred commencement condition M1 in the determination of the application, pursuant to s 8.7(2)(b) of the Environmental Planning Assessment Act 1979 (EPA Act).

7. The Court agreed to a conciliation conference, pursuant to s 34AA(2)(a) of the Land and Environment Court Act 1979 (LEC Act), with an onsite view at the request of the parties, and then held in person. Pursuant to s 34AA(2)(b), as an agreement was not reached, the conciliation was terminated, and the hearing was held forthwith.

8. During the hearing, based on the conciliation and evidence of the acoustic experts, the applicant sought leave to amend the plans and acoustic report that support the application. Pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 (EPA Reg), the Council, approves the amendments sought by the applicant, and to which the Court grants leave to rely upon.

9. Based on the amendments made to the application, the Council considers that the contentions relating to streetscape and visual privacy affecting the northern adjoining property (at 17 Upper Cliff Road) are addressed, although the contentions relating to the proposed terrace not being lawful, resulting in unacceptable acoustic and privacy amenity impacts to the southern adjoining property (21 Upper Cliff Road) are still pressed.

10. In submission, Mr Seton raised an additional issue, not originally described in the Statement of Facts and Contentions (SoFC), that arises from the amendments to the screening on the proposed terrace, and relating to the wall height resulting in an unacceptable bulk and scale.

11. As required in my assessment to grant consent to the amended application, I address below the remaining contentions of Council, all relevant jurisdictional requirements, undertake a merit assessment and consider the relevant issues raised by residents in objection.

The Site

12. The site is a regular, rectangular shape, surrounded by existing low density residential development.

13. The total area of the site is 720.8m². The site fronts to Upper Cliff Road (eastern boundary) for a length of 15.85m. The northern boundary, which adjoins to 19 Upper Cliff Road is 45m.

14. The site currently has a part 2, part 3 storey residential dwelling, located towards the front (Upper Cliff Road), with a pool along the northern boundary and the rear yard covered with grass and shrubs. The dwelling is oriented east-west, with a main private open space to the rear, although having two terraces on the ground and first floors, oriented towards the front/street, with views across the city.

15. The topography of the site is sloping from the west (rear) to east (front).

Relevant Planning Controls

16. The requirements of the EPA Act are relevant for the Court’s consideration to grant consent to the DA under appeal, and specifically as described in subss 4.15(1) and (3A) below:

4.15 Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a) the provisions of—

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v) (Repealed)

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

…

(3A) Development control plans If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority—

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

In this subsection, standards include performance criteria.

17. Pursuant to s 23(1) of the EPA Reg, the applicant has satisfied the Court with the provision of consent from the landowners for works proposed by the amended application.

18. The site is zoned R2 Low Density Residential, pursuant to cl 2.3 of the Lane Cove Local Environmental Plan 2009 (LCLEP). The proposed development is permissible with consent in the R2 zone, and the satisfaction of the relevant objectives of the zone is assessed below, as this remains in dispute.

19. The relevant development standards of the LCLEP are satisfied by the proposed development

20. The site is subject to the controls of the Lane Cove Development Control Plan 2010 (LCDCP). The experts specifically reference Part C1 Residential Development, sections 1.2 (streetscape objectives), 1.7 (specifically height) and 1.8 (specifically privacy – visual and acoustic). These matters remain in contention and are assessed below.

21. With respect to the acoustic related evidence, the experts refer to the following documents:

1. Acoustical Report, prepared by Koikas Acoustics, dated 18 December 2022 (Exhibit E);

2. Noise Guide for Local Government, prepared by NSW EPA, dated May 2013 (Exhibit 7); and

3. Supplementary acoustical report, prepared by Koikas Acoustics, dated 19 December 2022 (Exhibit H).

Expert evidence

22. The Court was provided with written and oral evidence from the following experts:

Planning – Mr Scott Barwick and Mr Andrew Bland.

Acoustic – Mr Adam Semple and Mr Stephen Gauld.

Resident submissions

23. The application was originally notified by Council, and one submission in objection was received from 17 Upper Cliff Road. The written submission of the objector is provided in Exhibit 1 and has been assessed by the Court in consideration of the amended application to grant consent.

Consideration of the Evidence

24. The focus of the evidence of the experts relates to the potential for adverse amenity impacts to adjoining properties, specifically 17 and 21 Upper Cliff Road, due to noise and privacy.

25. The planning experts agree, as described in their joint expert report (Exhibit 4) and in oral evidence that the proposed rooftop terrace and lift (to the roof), whilst not approved elsewhere in the locality under this regulatory framework, will not appear inconsistent with the streetscape because the structure cannot be seen from the street. There is no assessed incompatibility with the architectural character of the locality, however it is noted that the potential for (privacy) amenity impacts to the detached dwelling house character of the area remains in dispute between these experts.

26. Mr Bland is concerned that there is a potential for overlooking of the private open space of the (southern) adjoining property at 21 Upper Cliff Road. He assesses that a person (of average or above height) standing at the western edge of the proposed terrace could overlook the pool on the adjoining property, which is located at an elevated position in the rear yard. He is unsure on the elevation of the pool decking on the adjoining property, therefore cannot be certain whether there will be a privacy impact.

27. Mr Bland agrees that the proposed planter boxes with landscaping and screening on the terrace sufficiently mitigate any privacy impacts to 17 Upper Cliff Road. However, he expressed concern that the location of the screens above the (planter box) wall of the terrace could result in an excessive bulk and scale due to an effective wall height of 7.87 m, in exceedance of the 7.0 m wall height described in Part C, section 1.7.1 of the LCDCP.

28. Mr Barrick considers that any privacy impact to adjoining property is unlikely, due to the focus of residents using the terrace facing away from this sightline, seeking the view towards the east, and the effectiveness of proposed screening along the southern and western wall of the terrace. He notes that there are existing sightlines from the dwelling on the site and the rear yard into the private open space of the adjoining property. Exhibit F seeks to demonstrate the likely obscured sightlines from this perspective, although Mr Barwick acknowledges that the elevation of the pool decking is an estimate.

29. Mr Barwick considers that the location of the proposed screens, which are inset from the outside edge of the terrace wall will not cause an excessive bulk and scale, and not breach of the wall height as described in Part C, section 1.7.1 of the LCDCP.

30. The acoustic experts agree, as described in their joint expert report (Exhibit 3) and in oral evidence that the number of persons on the proposed terrace should be limited, and that the criteria to assess (intrusive) noise impacts is ‘baseline plus 5dbA’, as described in the intrusiveness noise criterion in the NSW EPA Noise Guide. They also agree that the potential for intrusive noise to adjoining properties comes primarily from ‘raised voices’, although were unable to ascribe this to a particular situation in a residential setting. They agree that the ‘raised voices’ assessment approach is a generally accepted criterion adopted by acoustic experts to assess intrusive noise.

31. The experts agree that the location of speaking persons on the terrace would affect the transmission of noise and that the design of acoustic/privacy screens should not cause noise to be amplified over the barriers. The experts agree that a limit of 10 persons on the terrace with a 0.6 m high acoustic screen above the planter box and a limit to the times of use, would likely result in an acceptable noise outcome. The experts confirm that the draft conditions of consent are developed to address these requirements and to manage future noise from the terrace.

32. Mr Semple relies on his noise modelling (Exhibit E) for a maximum of 10 persons under different voice effort scenarios, and explains how the proposed screens (Exhibit H) would affect noise reverberations. He assesses that the noise generated from use of the proposed terraces would be acceptable for up to 10 persons, as provided in the draft conditions of consent. The noise model does not consider any other noise emissions, such as music.

33. However, Mr Gauld holds a concern that the capacity of the terrace could host up to 20 persons due to its areal dimension, which would cause unacceptable noise impacts to adjoining properties. He accepts that noise exceeding this criterion (baseline plus 5 dbA) could already occur in the rear yard and from existing balconies/terraces of the dwelling on the site. There are no consent conditions to manage noise impact in these areas, except by relying on the provisions of the Protection of the Environment Operations Act 1997 (PoEO Act), as described in Part 2 of the NSW EPA Noise guide, to address any excessive intrusive noise generated from the site.

Consideration of the evidence

34. In consideration of the evidence relating to privacy, I am satisfied that the amended design of the terrace, relying on screens and planter box with landscaping (partially) along the internal walls of the proposed terrace, as described in Exhibit G, will have the effect to sufficiently mitigate and minimise any overlooking of adjoining dwellings and their private open space.

35. Based on the proposed terrace design that limits a person’s ability for overlooking adjoining properties, I am also satisfied that the proposed development provides a reasonable visual privacy to adjoining properties. The terrace is oriented in an east-west direction, with a depth of less than 3 m, positioned within the (northern portion of) roofline of the existing dwelling and is not situated opposite windows of adjoining dwellings.

36. The proposed screening around the terrace, as shown in the amended plans (Exhibit G), is sufficient to address any visual privacy impacts to both 21 and 17 Upper Cliff Road. I find the visual sighting of adjoining properties as viewed from the proposed terrace, has been sufficiently minimised.

37. I assess that the inset position of the screens along the inside perimeter of the terrace does not result in an unacceptable or excessive bulk and scale, and will not effectively increase the overall wall height above 7 m, as described in Part C section 1.7.1 of the LCDCP. The proposed screens will not be viewed as an extension of the dwelling wall, due to their inset from the outside edge of the wall, behind a planter box, with a reduced visibility from adjoining properties.

38. The design and location of the proposed lift, in the rear of the existing dwelling, and position of the terrace on the roof will not be viewed from the streetscape, and is agreed does not cause concern with regards to compatibility with the architectural character of the surrounding area or in the zone. Also, the proposed lift and terrace do not cause any architectural character issues to adjoining properties.

39. The shadow diagrams provided in Exhibit G indicate that the proposed terrace and lift do not cause overshadowing of the adjoining properties.

40. In consideration of the potential noise impacts to adjoining properties and the area, I am satisfied that the proposed development provides a reasonable acoustic privacy to neighbouring properties. The proposed louvers and screens, with noise abatement panels on the terrace are suitably designed to ensure that noise does not reverberate and cause impact to the surrounding area.

41. I accept that the size/area of the proposed terrace can practically hold more than 10-persons. However, I consider that the design of the terrace with the proposed noise management structures, together with the draft conditions of consent to manage noise, is appropriate and that the applicant (or future owners) is obligated to adhere to these conditions of consent. It is noted that I make a determination below on the maximum number of persons permitted on the terrace at any one time, by condition of consent, as this remains in dispute between the parties. The agreed conditions of consent to limit the hours of use, with no external noise source (such as speakers) is reasonable, and I accept is agreed by the experts as appropriate to limit intrusive noise beyond the site.

42. The requirements of the PoEO Act are not superseded by the conditions of consent, and the applicant is still bound to ensure that noise is not an issue that adversely impacts their neighbours.

43. I accept that the deferred commencement condition (M2) of the original consent will address and ensure any mechanical noise from the operation of the lift is sufficiently mitigated.

44. I form the opinion, based on the evidence of the experts, amended plans and amended acoustic report, that the proposed terrace, as designed and managed according to the agreed conditions of consent, will not cause adverse amenity impacts, including acoustic and visual privacy to the surrounding area.

45. Based on the evidence before the Court, I assess that there will unlikely be intrusive or offensive noise impacts, as described in the NSW EPA Noise Guide for Local Governments (Exhibit 7), to adjoining properties or surrounding dwelling houses in the area. I accept the baseline noise criteria (plus 5 dbA), as agreed by the experts, is reasonable to assess noise impacts and am satisfied that the applicant’s modelling results with assumptions that inform the noise assessment, are sufficiently accurate. The agreed position of the experts, that up to 10 persons on the terrace is appropriate to reduce any potential for impact, is considered reasonable.

34. I am satisfied that the objectives of the LCDCP relating to amenity for residential development, as described in Part C, section 1.8 below, are sufficiently addressed by the proposed development:

1.8 Amenity

Objectives

The objectives for amenity are to:

1 To provide reasonable solar access to habitable rooms and recreational areas of new and existing developments.

2 To provide reasonable acoustic and visual privacy for neighbouring properties.

3 Minimise overlooking between adjoining dwellings and their private open spaces.

Is the proposed rooftop terrace lawful?

47. The primary contention of Council, as explained to the Court, is that the proposed rooftop terrace is a prohibited residential development, as described in Part C, section 1.8.2 of the LCDCP, below:

1.8.2 Privacy – Visual and Acoustic

a) Dwellings or additions shall be designed and orientated so that windows, balconies and decks are not situated directly opposite windows of the habitable rooms of any adjoining dwellings, unless privacy can be addressed.

b) Roof terraces and decks above the upper storey are prohibited.

c) Elevated decks, terraces or balconies greater than 1m above ground level (existing) to living areas are not to exceed a maximum depth of 3.0m. Deeper decks may be considered if privacy to adjoining properties is addressed.

d) The noise generated by mechanical equipment of any sort must not exceed the background noise level by more than 5dB (A) when measured in or on the lot adjacent to the equipment. Where sound levels are exceeded, sound proofing measures will be required.

48. In addition, Mr Seton submitted that if the application was to overcome the prohibition of the rooftop terrace, the likely adverse amenity impacts, particularly to 21 Upper Cliff Road from noise and privacy, would not satisfy the objectives 2 and 3 in Part C, section 1.8 of the LCDCP.

49. The Court has consistently applied the fundamental premise that in an appeal such as this, consideration of matters described in s 4.15(1) of the EPA Act is required. The parties relevantly reference Zhang v Canterbury Council (2001) 51 NSWLR 589; [2001] NSWCA 167 (Zhang judgement). The Court is required to give ‘proper, genuine and realistic consideration’ to the relevant provisions of the LCDCP. At [30] of the Zhang judgement Cole JA states:

[30] ‘the manner in which the requirement which is regarded as necessary or desirable by the Council is expressed in a development control plan does not determine the validity or invalidity as being within or without power. Rather, content and not form is to be looked at.

50. In my consideration of the amended application, I have started with the premise that weight should be given to the prohibition of the rooftop terrace, as described in Part C, section 1.8.2 of the LCDCP. Whilst recognising the prohibition of the rooftop terrace above the upper storey is a provision that the Council has sought to consistently enforce, there is a jurisdictional consideration that is afforded to the applicant for the Court to consider flexibility in application of this provision, pursuant to s 4.15(3A) of the EPA Act. A key element of this consideration in subss (3A)(b) is whether the proposed development offers ‘reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development’.

51. Further to the consideration to apply a flexible approach, s 3.42(1) below, provides a relevant jurisdictional framework to assist the Court:

3.42 Purpose and status of development control plans (cf previous s 74BA)

(1) The principal purpose of a development control plan is to provide guidance on the following matters to the persons proposing to carry out development to which this Part applies and to the consent authority for any such development—

(a) giving effect to the aims of any environmental planning instrument that applies to the development,

(b) facilitating development that is permissible under any such instrument,

(c) achieving the objectives of land zones under any such instrument.

The provisions of a development control plan made for that purpose are not statutory requirements.

52. To determine whether flexibility of the rooftop terrace prohibition control described in Part C, section 1.8 of the LCDCP is warranted for the amended application under appeal, pursuant to s 4.15(3A) of the EPA Act, I first consider the primary purpose of the guidance provided in the LCDCP, as described in cl 3.42(1).

53. The Court accepts that the proposed rooftop terrace with lift access is intended to form part of an existing (detached) dwelling house, which is permissible with consent within the R2 zone, as described in cl 2.3 of the LCLEP, below:

Zone R2 Low Density Residential

1 Objectives of zone

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To retain, and where appropriate improve, the existing residential amenity of a detached single family dwelling area.

• To encourage new dwelling houses or extensions of existing dwelling houses that are not highly visible when viewed from the Lane Cove River or Parramatta River.

• To ensure that landscaping is maintained and enhanced as a major element in the residential environment.

2 Permitted without consent

Home occupations

3 Permitted with consent

Bed and breakfast accommodation; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Group homes; Health consulting rooms; Home businesses; Home industries; Hospitals; Local distribution premises; Oyster aquaculture; Places of public worship; Pond-based aquaculture; Respite day care centres; Roads; Signage; Tank-based aquaculture

4 Prohibited

Any development not specified in item 2 or 3

54. With respect to the achievement of the objectives of the R2 zone described in cl 2.3 of the LCLEP, the retaining of residential amenity in the detached single dwelling area is the most relevant objective for consideration, as pressed by the respondent. The Court adopts the definition of ‘area’ in the EPA Act.

55. I am of the opinion, for reasons described above, that the proposed development satisfies the objectives of the R2 zone, specifically by retaining, and not adversely impacting, the existing residential amenity of existing single dwelling houses, which dominate the (surrounding) area. As I have assessed above, the proposed terrace development by design and location, together with its operation (through the conditions of consent), will not adversely impact the amenity, specifically the acoustic or visual privacy, of adjoining properties or the area.

56. The relevant aims in cl 1.2 of the LCLEP for consideration of the amended application are described below:

1.2 Aims of Plan

(1) This Plan aims to make local environmental planning provisions for land in Lane Cove in accordance with the relevant standard environmental planning instrument under section 3.20 of the Act.

(2) The particular aims of this Plan are as follows—

..

(a) to establish, as the first land use priority, Lane Cove’s sustainability in environmental, social and economic terms, based on ecologically sustainable development, inter-generational equity, the application of the precautionary principle and the relationship of each property in Lane Cove with its locality,

(b) to preserve and, where appropriate, improve the existing character, amenity and environmental quality of the land to which this Plan applies in accordance with the indicated expectations of the community,

(c) in relation to residential development, to provide a housing mix and density that—

(i) accords with urban consolidation principles, and

(ii) is compatible with the existing environmental character of the locality, and

(iii) has a sympathetic and harmonious relationship with adjoining development,

….

(i) in relation to accessibility, to increase the number of accessible properties and facilities in Lane Cove,

….

57. In consideration of the evidence before the Court, I am satisfied that the proposed development achieves the relevant aims of the LCLEP, because: the provision of a lift accessing all areas of the dwelling promotes intergenerational equity, as sought by the applicant; the proposed rooftop terrace and lift preserve the existing character of the locality, not being visible from the streetscape and having built structures harmonious to the existing dwelling on the site; and amenity is preserved.

58. It is accepted that there are no breaches of the relevant development standards of the LCLEP. The relevant provisions of the LCDCP are intended to be consistent and provide more detail in support of the development standards in the LCLEP.

59. I am of the opinion that the principal purpose of the LCDCP, as described in s 3.42 of the EPA Act is satisfied by the proposed development. I assess that: the proposed terrace with lift access is permissible with consent in the R2 zone, pursuant to cl 2.3 of the LCLEP; the relevant aims in cl 1.2 are achieved; and the objectives of the R2 zone are satisfied, pursuant to cl 2.3. The proposed rooftop terrace and lift comply with the relevant objects of the LCDCP, as described in Part C, section 1.8.

60. In consideration of the amended application with respect to s 4.15(3A) of the EPA Act, I am satisfied that the prohibition on rooftop terraces above the upper storey, as described in Part C, section 1.8.2 of the LCDCP should be applied flexibly.

61. I consider that the proposed development offers a reasonable alternative solution to the prohibition on rooftop terraces above upper stories of residential developments (as described in Part C, section 1.8.2 of the LCDCP) because: the proposed rooftop terrace preserves amenity and local character; provides a more useful space that benefits from afforded scenic vista; and is well designed to provide reasonable privacy to adjoining properties, being located within the roof form, having acoustic/privacy screening, not directly facing (or visible from) windows of adjoining properties (minimising overlooking), and takes advantage of the existing dwelling form. The proposed terrace with lift access is a reasonable alternative solution that achieves the objects of the relevant provision (standard) in Part C, section 1.8 of the LCDCP.

62. I am satisfied that the proposed development sufficiently addresses the requirements of the LCLEP and LCDCP, pursuant to subss 4.15(1)(a)(i) and (iii) of the EPA Act.

63. I find that the proposed terrace, as described in the amended application, is suitable for the site, pursuant to s 4.15(1)(c) of the EPA Act, because it does not cause unreasonable amenity impacts to the adjoining properties and in the surrounding area of single dwelling houses.

Conditions

64. Based on the findings described above, I determine to grant conditional consent to the application as amended, pursuant to s 4.16(1)(a) of the EPA Act, and impose conditions as described in Annexure A, pursuant to s 4.17(1).

65. I adopt the draft conditions of consent as agreed by the parties, which were filed on 20 December 2022 (tendered as Exhibit 6). I adopt the previous deferred commencement condition relating to noise assessment of the lift, as agreed by the parties. I address below, condition A-14 that remains in dispute between the parties.

66. With regards to draft condition A-14, I prefer the applicant’s draft condition, which limits the use of the terrace to 10-persons at a time. I adopt this numerical limitation based on the agreement of the experts in the expert report that indicates noise generated from 10-persons can be managed to achieve an acceptable noise outcome, with appropriate design of the terrace. I also consider that this limit is a practical number for the proposed residential use of the terrace. I note that the applicant remains subject to the provisions of the PoEO Act, which has the effect to ensure any intrusive acoustic noise is not caused to adjoining properties on a recurring basis.

Conclusion

67. The amended application has been considered, based on the evidence before the Court, including all (amended) supporting plans, documents, agreed draft conditions of consent, and expert reports and oral submissions. The amended application has been assessed against the relevant jurisdictional requirements and with a merit consideration.

68. In consideration of the amended application under appeal, together with the conditions of consent, I am satisfied that DA48/2022, as amended, sufficiently addresses the relevant jurisdictional requirements, established in ss 4.15(1) and (3A) of the EPA Act. I am satisfied that the amended application provides a reasonable alternative solution for a rooftop terrace, which has demonstrated reasonable residential amenity to adjoining properties and the surrounding area can be achieved.

69. I therefore determine to amend the conditions of the original consent, and approve consent of Development Application DA48/2022 with new conditions, pursuant to s 4.16(1)(a) of the EPA Act.

Orders

70. The Court notes that:

1. The Lane Cove Council, as the relevant consent authority, approves, under s 38 of the Environmental Planning and Assessment Regulation 2021, to the applicant amending Development Application DA48/2022.

71. The Court orders:

1. Leave is granted to rely on plans described in condition A.1 of Annexure A.

2. The appeal is upheld.

3. Development Application DA48/2022 which seeks a rooftop terrace with lift access on Lot 6 in Deposited Plan 6768, also known as 19 Upper Cliff Road, Northwood is determined by the grant of consent, subject to conditions in Annexure A.

4. All exhibits are returned.

S Bish

Commissioner of the Court

**********

Annexure A

Decision last updated: 18 January 2023