Season Group Pty Ltd v Council of the City of Sydney

[2017] NSWLEC 1441

Land and Environment Court

New South Wales

Medium Neutral Citation:	Season Group Pty Ltd v Council of the City of Sydney [2017] NSWLEC 1441
Hearing dates:	2 May 2017
Date of orders:	16 August 2017
Decision date:	16 August 2017
Jurisdiction:	Class 1
Before:	Martin SC
Decision:	The Orders of the Court are: (1) The appeal is upheld. (2) Modification Application D/2015/421/A lodged with the Council on 17 October 2016 seeking deletion of condition 76 from development consent D/2015/421 granted by the Court as a consequence of proceedings number 2016/52934 is determined by approval. (3) The Exhibits, save for Exhibits A and C, are returned.
Catchwords:	Development modification –future development potential of heritage item – amenity of unbuilt apartments – notice for purchasers
Legislation Cited:	Conveyancing Act 1919 ss 52A Conveyancing (Sale of Land) Regulation 2010 Environmental Planning and Assessment Act 1979 ss 96AA(1), 149 Environmental Planning and Assessment Regulation 2000 Sydney Local Environmental Plan 2012 Sydney Development Control Plan 2012 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development
Cases Cited:	Australian International Academy of Education Inc v Hills Shire Council (2013) 196 LGERA 1; [2013] NSWLEC 1 at [93] Davies v Penrith City Council [2013] NSWLEC 1141 Season Group Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1354
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Season Group Pty Ltd (Applicant) Council of the City of Sydney (Respondent)
Representation:	Counsel: Mr A Gadiel (Solicitor) (Applicant) Ms F J Berglund (Respondent)   Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent)
File Number(s):	2016/380721
Publication restriction:	No

Judgment

1. This case concerns an appeal brought against a deemed refusal of an application made under s 96AA of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify consent D/2015/421 (the Consent) granted by this Court on 30 August 2016 in relation to 22 – 38 Yurong Street, Darlinghurst (the Site). That Consent was granted for the demolition, alterations and additions to an existing building and construction of a new commercial/residential development.

2. The Applicant has applied to have a condition (condition 76) of the Consent removed, with no further amendment to the conditions of consent, or to the development to which the consent relates. That condition is in the following terms:

(76) COVENANT

Prior to the issue of an Occupation Certificate, a covenant must be registered on the title of the north facing units 202A, 302A and 402A that alerts the future owners of those units that their access to light may be restricted by any future development of Museum Lodge at 20 Yurong St Darlinghurst.

3. While the Council does not oppose the deletion, it contends that such a deletion with no further amendment would be a poor outcome. It instead proposes two possible alternatives to the condition in contention. These proposed alternative conditions are:

BOUNDARY WALL COVENANT

The units adjacent to the northern boundary of the site at Levels 2, 3 and 4, being Units 202A, 302A and 402A, must construct a full height, sealed, bricked up or otherwise enclosed northern boundary wall along the eastern side of the units (the rear of the units), for the full length of the building, and in addition, the western balcony to Unit 402A on Level 4 must construct a minimum 1.6 metre high solid screen to its northern boundary for the full length of the balcony, prior to the construction of any building on the Museum Lodge site to the north at 18-20 Yurong Street (Lot 1 DP 75356 and Lot 1 DP 176829), in the circumstance that the adjoining development contains a wall abutting their southern boundary, in the general location of the affected units. Prior to a Construction Certificate being issued, a documentary restrictive covenant is to be registered on the Title of the units adjacent to the northern boundary (units 202A, 302A and 402A). The covenant is to be created appurtenant to Council and at no cost to Council. Added (insert date)

OR

DESIGN MODIFICATIONS

The design of the building must be modified as follows: (a) A full height, sealed, bricked up, or otherwise enclosed northern boundary wall is to be included along the eastern side of the site at Levels 2, 3 and 4, (to the rear of units 202A, 302A and 402A), for the full length of the building; and (b) A minimum 1.6 metre high solid screen is to be included to the northern boundary of the western balcony of Unit 402A, for the full length of the balcony. The modifications are to be submitted to and approved by the Council’s Area Planning Manager prior to a Construction Certificate being issued. Added (insert date)

4. In the course of this appeal, a further option emerged, prompted by an observation of Mr Giovanni Cirillo, town planning expert for the Applicant, at [5.8.1] in the Joint Expert Urban Design Report [Ex 4]. That option related to the inclusion of a “note” on the Conditions of Consent. Such a note would be placed between the first and second conditions and would be in the following terms:

“Note: The configuration of units adjacent to the northern boundary of the site at levels 2, 3 and 4, being units 202A, 302A and 402A, will not prejudice the future development of Museum Lodge at 20 Yurong Street Darlinghurst”.

Findings

5. The findings are:

1. Condition 76 is either incapable of being satisfied or is unlawful and is accordingly ordered to be deleted. This is accepted by the parties.

2. Museum Lodge could be the subject of further development in the future, subject to the relevant planning controls in place at that time.

3. The impacts of that potential future development of Museum Lodge upon solar access of units 202A, 302A and 02A on the Site, according to the uncontested modelling put into evidence, would fall within acceptable limits. Any other potential impacts can be managed routinely.

4. The imposition of further special conditions, covenants or notes upon consent conditions is not warranted in these circumstances. It is not necessary for me to make findings as whether the Council’s proposed additional conditions are within power or reasonable.

Background to the Appeal

6. The site the subject of the appeal is located at 22-38 Yurong Street, Darlinghurst (the Site). It is adjacent to a building known as “Museum Lodge” with a street address of 18 – 20 Yurong Street, Darlinghurst. Museum Lodge is listed as a local heritage item. It comprises four storeys, and is presently used as a residential building providing single room accommodation as single serviced rooms, otherwise known as a boarding house.

7. Units 202A, 302A and 402A (referred to in this judgment as the Units) are on the northern boundary of the Site and share a boundary with Museum Lodge. They are two-bedroom units which sit within dual-key apartments with a studio, the studios being known as units 202B, 302B and 402B. They are proposed to be constructed on the boundary. The northern wall ends at the beginning of balconies on levels 2, 3 and 4.

8. In Season Group Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1354 (the first Court proceeding), Tuor C was concerned to bring to the attention of future purchasers of the Units in the yet-to-be-built apartments located at the Site that any future development of Museum Lodge could negatively impact upon these purchasers’ solar access.

9. Tuor C relevantly expressed her view as follows:

20. The Court visited the site and heard from two objectors. The concerns of the objector from Stanley Street had primarily related to view loss and these were largely resolved by the amendments to the proposal to delete the sixth level. The concerns of the objector from the adjoining building, Museum Lodge, were that the development may impact on its development potential. Although Museum Lodge is a heritage item, it is below the maximum height limit and therefore has the potential for an extension. The development is to be built to its boundary, which the objector considered to be contrary to the ADG and may result in Museum Lodge being an “isolated site”.

21. Council did not raise the loss of development potential of Museum Lodge as a contention in the proceedings. The ADG anticipates zero side setbacks where the desired character is for continuous street walls and no building separation is required where building types incorporate blank party walls. The development is built to the boundary with a blank wall and will comply with the Building Code of Australia (BCA). However, the proposed boundary wall does not extend the whole length of the development presumably to provide natural light to bedroom 1 in the northern unit on levels 2, 3 and 4 and the adjoining balconies, as well as the balcony facing Yurong Street on Level 4. If Museum Lodge were to be extended it would probably also be built to the boundary and consequently the natural light to these areas would be reduced. In these circumstances, it is appropriate to include a condition that requires a covenant that alerts the future owners of these units that their access to northern light may be restricted by any future development of Museum Lodge that is built to the common boundary.

10. To address these concerns, Tuor C required (at [53]) “[a]n additional condition which requires a covenant that alerts the future owners of units adjoining the northern boundary of the site that their access to light may be restricted by any future development of Museum Lodge”. The condition imposed by the Commissioner, which is the subject of this appeal, is set out at [2] above.

11. Condition 76 did not arise out of a matter that was in contention between the parties during the first Court proceeding, the Court did not signal its intention to impose condition 76 and the parties accordingly did not address the Court in relation to it. The Applicant submits that as a result of this appeal the Court has new and additional information that was not before it on the last occasion, and can consider the matter afresh.

Statutory Framework

12. The Site and Museum Lodge are subject to the Sydney Local Environmental Plan 2012 (SLEP) and the Sydney Development Control Plan 2012 (Sydney DCP). Both developments are zoned “B4 Mixed Use” under the LEP, with the proposed use of the Site being permissible with consent.

13. Cl 4.3 of the SLEP sets out the requirements for height of buildings, with objectives including that the height of development is appropriate to the condition of the site and its context (cl 4.3(1)(a)) and the promotion of the sharing of views (cl 4.3(1)(c)). Under the LEP, the permissible height of Museum Lodge is 18 m. The FSR control is 2.5:1, and under the Sydney DCP, the height in storeys is 5 storeys.

14. Both the Site and Museum Lodge are located within the East Sydney heritage area (C 13). Under the Sydney DCP, the Site contributes to the significance of the heritage conservation area, and contains two separate commercial buildings. The approach to be taken in the development of sites of State heritage significance or containing more than one heritage item is set out at cl 3.9.4 of the Sydney DCP. Museum Lodge is listed under the SLEP as a local heritage item (as item 1510 where it is described as the “Park Hotel”). The heritage inventory statement concludes that “while the building is not probably the most architecturally appealing representative of the style in the Darlinghurst panorama, it remains of aesthetic and historic importance for its streetscape contribution and detailing”: [Ex E at p.4].

15. The State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development requires the Apartment Design Guide (ADG), amongst other things, to be taken into consideration in determining an application for consent or modification: cl 28(2)(c) and cl 29(2)(c)).

16. Various provisions of the ADG are relied upon in this appeal. Of significance is objective 3B–2 which is concerned with minimising the overshadowing of neighbouring properties during mid-winter. The design guidance in this respect is set out as follows:

Living areas, private open space and communal open space should receive solar access in accordance with sections 3D communal and public open space and 4A Solar and daylight access.

Where an adjoining property does not currently receive the required hours of solar access, the proposed building ensures solar access to neighbouring properties is not reduced by more than 20%: ADG at p.49.

Notice to be given to Purchasers upon sale of land

17. A contention in this appeal is what notice (if any) ought to be given to potential purchasers upon sale of land, and how the provisions of the planning system may facilitate this.

18. Section 52A(2)(a) of the Conveyancing Act 1919 requires to be attached to the contract for the sale of land such documents as may be prescribed. Under the Conveyancing (Sale of Land) Regulation 2010, r 4 requires a s 149 certificate to be attached to the contract of sale. A section 149 certificate is relevantly defined under that Regulation to mean a certificate issued under s 149(2) of the EPA Act.

19. Under the Environmental Planning and Assessment Regulation 2000, r 279(1) prescribes the matters that are to be specified in a certificate under s 149(2) of the EPA Act as being the matters set out in Schedule 4 of the Regulation. Included in the s149 certificate is information regarding the zoning of the property; the relevant state, regional and local planning controls and other property information such as land contamination and road widening. Less information is required to be provided on the s 149 certificate if the development is complying development: r 279(2).

20. Section 149 of the EPA Act is reproduced in full below:

149 Planning certificates

1. A person may, on payment of the prescribed fee, apply to a council for a certificate under this section (a "planning certificate" ) with respect to any land within the area of the council.

2. On application made to it under subsection (1), the council shall, as soon as practicable, issue a planning certificate specifying such matters relating to the land to which the certificate relates as may be prescribed (whether arising under or connected with this or any other Act or otherwise).

3. The regulations may provide that information to be furnished in a planning certificate shall be set out in the prescribed form and manner.

4. A council may, in a planning certificate, include advice on such other relevant matters affecting the land of which it may be aware.

5. A council shall not incur any liability in respect of any advice provided in good faith pursuant to subsection (5). However, this subsection does not apply to advice provided in relation to contaminated land (including the likelihood of land being contaminated land) or to the nature or extent of contamination of land within the meaning of Part 7A.

6. For the purpose of any proceedings for an offence against this Act or the regulations which may be taken against a person who has obtained a planning certificate or who might reasonably be expected to rely on that certificate, that certificate shall, in favour of that person, be conclusively presumed to be true and correct.

Site visit and Objector Evidence

21. On 2 May 2017 I conducted a site visit together with the parties, their experts and legal advisers. I walked along Yurong Street, observing the Site and its locale, particularly its relationship to Museum Lodge. I walked along Stream Street to the rear and Stanley Lane to the south.

22. Evidence was given on site on behalf of the owners of Museum Lodge, Najava Pty Ltd. In their first written submission to the Council in December 2016, in response to the modification application, the owners did not accept the proposition put by the Applicant that Museum Lodge is at its development potential, as there are many examples of where heritage buildings have been provided with alterations and additions sympathetic to their heritage form; future development opportunity should not be stifled by the Applicant seeking to locate openings (to the apartments) on an adjoining boundary that may suffer a future loss of amenity; the modification should consider how the affected apartments might be better laid out internally to avoid this being a future issue for occupants/purchasers; the owners of Museum Lodge are not precluded from developing to its property boundary at a later stage. The objector’s conclusion was that the application should be refused.

23. In a second written submission, dated 26 April 2017 [Ex 3], while accepting there was a question about the legal validity of the covenant proposed by condition 76, the owners contended that if the covenant were to be removed, a suitable alternative should be identified to provide the protection that the Commissioner intended the covenant to provide: [6]. The objector recommended that the condition remain on the consent until the proposed development is amended either to redesign the apartments to allow for adequate solar access, or to extend the northern boundary on each floor for the full length of the boundary wall. This would result in the proposed development not depending on northern light that will potentially be impacted by a development of Museum Lodge.

The Applicant’s Contentions and Submissions

24. The Applicant argues that Condition 76 is incapable of being satisfied, or in the alternative, it is unlawful. This position is uncontroversial between the parties.

Use of Planning Certificate Regime to Notify

25. The Applicant’s third contention is that potential purchasers should be alerted to the possible consequences of neighbouring development via a planning certificate issued under s 149 of the EPA Act rather than a covenant; it is contrary to the public interest to establish other mechanisms that are in competition with that scheme; the intended covenant is an inferior mechanism to the regime established by that scheme; and the Council has an opportunity to alert future purchasers of the relevant units of the possible consequences of the neighbouring development through the issue of a planning certificate under that scheme.

Further Development of Museum Lodge Unlikely

26. The Applicant further contends that it is highly improbable that Museum Lodge could be further developed under the current planning controls. This is because it is a listed heritage item and its demolition is unlikely to be approved; any re-development of the neighbouring site must respect the form of the existing building and be complementary to the existing development; to remain within the current height limit imposed by the LEP, Museum Lodge can only be extended upward by one level; the Sydney DCP imposes a five-storey limit on the neighbouring site, and Museum Lodge is presently a four-storey building; and no development application has been lodged for either the demolition or extension of Museum Lodge.

27. In support of this contention, the Applicant relies upon the recommended management of Museum Lodge in the heritage statement which states that “there shall be no vertical additions to the building and no alterations to the façade of the building other than to reinstate original features”: Ex E at p.7. It also relies upon the controls set out in the Sydney DCP at cl 3.9 insofar as those controls set out the parameters that are to guide development of or may impact on heritage items and conservation areas.

28. With respect to development in mixed use areas, cl 4.2 of the DCP requires that development is not to exceed the number of storeys shown in the building height in storeys map. Moreover, the maximum can only be achieved when the proposed development, amongst other things, is consistent with the scale and form of surrounding buildings in heritage conservation areas, and does not detract from the character and significance of the existing building: 4.2.1.1.

26. The performance-based ADG requires development to demonstrate how it meets the objective and design criteria which apply to the siting, design and amenity of apartment development. The modelling prepared for this appeal by Mr Dickson (see below) satisfies objective 3B-2 (minimising overshadowing) in the event that Museum Lodge is redeveloped. With respect to visual privacy, the ADG design guidance states that no separation is required between blank walls: ADG p.63.

27. In the alternative, the Applicant says that if Museum Lodge were further developed, it would be unlikely to have any substantial impact on the access of units 202A, 302A and 402A to light. This is because of the state of the relevant planning controls, and any shadow cast on the Units is likely to be from 4-16 Yurong Street, rather than from Museum Lodge (and further overshadowing from 4-16 Yurong Street is unlikely as it is already fully developed). Moreover, there is no special need to warn future owners of the Units that access to light may be blocked.

The Council’s Position

31. As noted at 24 above, the Council does not dispute the Applicant’s contentions which are concerned with the inability of condition 76 to be satisfied, or its lawfulness. Notwithstanding the problems with condition 76, the Council says that purchasers should be alerted as to the potential impact of future development, but not via a s 149 certificate.

32. With respect to Contention 3, Council submits that a s 149(2) certificate, which is mandatorily attached to contracts of sale, shows the zoning of the property, its relevant state, regional and local planning controls and other property issues such as land contamination and road widening. This certificate is based on the parent property only, and not on the individual lot numbers.

33. A s 149(5) certificate has the potential to include other factors such as advice from other authorities, subdivision history and easements where the Council has this information available. This certificate is not considered to be a suitable alternative to advise future owners of the relevant matter, as the purchase of a s 149(5) certificate is not a pre-requisite to purchasing a property. Any condition requiring future owners to be advised of the potential loss of light to the Units via the inclusion of this information on a s 149 certificate would transfer the obligation to the Council for the life of the development. The EPA Act states that Council may, in a planning certificate, include advice on such other relevant matters affecting the land of which it may be aware. No guarantee can be made that this information would always be provided.

34. With respect to the remaining Contentions, the Council does not accept that Museum Lodge, as a heritage item, has been fully developed. The Council could approve development on a site containing a heritage item that may otherwise not be allowed, provided certain preconditions are able to be met.

35. The ADG encourages siting new development so that it does not further reduce solar access to a neighbouring site where that site does not currently receive the required hours of solar access. Future residential development at Museum Lodge may be affected by this provision.

36. Access to light is compromised by the design of the apartments. Any development on the adjoining Museum Lodge site that reaches a height equal to or greater than the Site may further reduce the amenity of these units. The Application does not include an alternative design solution or alternative BCA compliance solution that would result in an acceptable design that would justify the deletion of the condition.

37. There is no dispute as to the threshold matter required by s 96AA(1)(a) of the EPA Act. However, the Council says that the proposed development (as modified, that is, without the condition) does not propose an appropriate alternative to the requirement for a covenant on title, and is therefore not in the public interest.

38. In the Council’s submission, there are two possible solutions to the notice outcome, which are set out above at [3]: first, that a boundary wall be built and a screen constructed, if Museum Lodge were to be redeveloped so as to contain a wall abutting its southern boundary. A restrictive covenant would contain these requirements. The second option requires a design modification to the Units which would include bricking up the northern boundary wall and constructing a screen. The Council sees this as the preferred outcome, as it provides certainty of outcome, and is not conditional upon the happening of a hypothetical future event. .

Expert Evidence

39. A joint expert report was prepared by Mr Rohan Dickson and Mr Giovanni Cirillo (town planners for the Applicant), and Ms Amy Douglas (town planner) and Ms Julia Pressick (urban designer) for the Council [Ex 4]. Each of these witnesses also gave evidence at the hearing.

40. An individual expert report was prepared on behalf of the Applicant by Mr Dickson: [Ex C]. Attached to that report is a new set of drawings prepared by Mr Dickson showing shadow impacts for the assumed future envelope following a hypothetical redevelopment of Museum Lodge. This envelope assumes current planning controls, so is modelled to 18 m to comply with the height limit, but is conservative insofar as it does not include a three metre setback (for the hypothetical redevelopment).

41. Mr Dickson’s report concludes that there will be minor additional impact to some units between 9 am and 3 pm, and “the additional impacts are considered reasonable as the development provides adequate solar access to balconies off the bedrooms of all three apartments which are impacted by condition 76”: Ex C at p.3.

42. The experts agree that there could be further development of Museum Lodge, notwithstanding its heritage status.

43. The experts also agree that solar access to the Site would be compliant with the relevant controls should Museum Lodge be developed in accordance with the scenario proposed by Mr Dickson in the solar diagrams referred to above. Ms Pressick for the Council conceded that the impact would not be unreasonable. Mr Cirillo went further, on the basis that the model did not include a three metre setback, noting that if the setback were included, there would be a reduced impact.

44. Mr Cirillo opined that there is no statutory planning reason why neighbouring properties must be advised as to the possibility of development on abutting properties. Purchasers can make their own inquiries about the development potential of a site, and all planning instruments are available online at no cost. In his oral evidence, Mr Cirillo expressed the opinion that Museum Lodge is located within an “area in transition”, where built form is being removed and replaced. A person buying in such an area would be aware of that potential transition, in his view.

45. Moreover, Mr Cirillo refers to what he describes as the Council’s longstanding practice of imposing notes on development consents where a site may obtain sunlight from a neighbouring property alerting future owners that they have no right to preclude the neighbouring development from developing in accordance with the applicable controls. In Mr Cirillo’s experience, it was not the practice of the Council to require such a notification to be put on title.

46. Ms Douglas disputes the use of the “note”, stating it has little to no legality, and is not common practice for the Council. Moreover, there is no guarantee that every future owner would retrieve a copy of the overall original development consent for an entire building when purchasing one individual unit. Reliance on a s 149(5) certificate presents problems as it is more expensive than a s 149(2) certificate, is not a prerequisite for sale and will place a burden on the Council to maintain it for the life of the development.

47. With respect to further possible redevelopment, the experts agree that there are multiple scenarios in which redevelopment could occur.

48. Ms Pressick proposes that there are two different scenarios: one option is the addition of a new floor (as modelled by Mr Dickson); the other is complete replacement if the building is unable to be retained (for example, if it is damaged by an unforeseeable cause). Ms Douglas’ evidence is that it would not be impossible for an event to occur which would require the building to be demolished.

49. In Ms Pressick’s opinion, in the case of the first option (addition of a new floor), any addition would be required to be subservient to the existing Museum Lodge building, with any development likely to have little impact on the Units. Should a replacement building be constructed, on the other hand, its configuration is unknown, and Ms Pressick is unable to determine what impact a new building would have on the Units. The impact, she says, could be substantial. However, Ms Douglas concurred with the Applicant that even if the building were demolished it would likely result in a replacement building of four storeys (due to FSR controls) with a three metre setback.

50. Ms Douglas holds the opinion that with the first option, some impact in terms of solar access is shown to result to the Units, meaning that potential redevelopment of Museum Lodge would need to be designed in such a way as to avoid impacts to the Site as far as solar access is concerned.

51. In Mr Dickson’s opinion, solar access can be achieved in the northern facing units of the Site. Mr Dickson states that if a future redevelopment of Museum Lodge were to provide a breach in height limit for increased amenity in a manner similar to the Site, it is unlikely to cause solar impacts on neighbouring properties.

52. Further, according to Mr Dickson, redevelopment of Museum Lodge would be highly constrained due to its heritage listing and the very specific controls in place. Any additional floor is likely to be set back from the street wall alignment to allow the heritage item to remain the dominant element from street level. Mr Dickson further expressed the opinion that if necessary, privacy screens could be used in the future.

53. In the unlikely event of demolition, the party wall has minimal impact on solar access to the balconies of the Units, with compliance still possible. Mr Cirillo’s evidence was that he could not recall a heritage building being totally destroyed by fire.

Discussion and Consideration

Deletion of Condition 76

54. The Court has jurisdiction to deal with the application to remove condition 76 on the ground that its imposition was beyond power: Australian International Academy of Education Inc v Hills Shire Council (2013) 196 LGERA 1 at [93]; [2013] NSWLEC 1.

55. Both parties in the proceeding agree that the relevant condition is not capable of implementation. I accept their submissions that Condition 76 is unable to achieve that which it was, with every good intention, designed to achieve. Further, the Council concedes not only that Condition 76 is unenforceable, but that it is proper that it be deleted from the Conditions of Consent. Accordingly, I find that it is appropriate that the consent be modified to remove that condition.

Addition of New Condition

56. The dispute between the parties therefore lies in the remaining issue: the extent to which what, if anything, should be done to put future purchasers of the Units on notice as to the potential impact on their solar access, should Museum Lodge be redeveloped. I am also cognisant of the concern raised by the objector with respect to its future right of development.

57. Having heard the evidence and considered the submissions, I concur with the experts, the Council and the objector that Museum Lodge may be further developed under the current LEP and DCP controls. While there are detailed objectives that must be satisfied under the controls, they do not of themselves preclude further development. Moreover, there is provision within the SLEP which allows for the consent authority to approve development on a site containing a heritage item that may not otherwise be allowed by the SLEP if the consent authority is satisfied as to certain prescribed matters: SLEP cl 5.10(10).

58. The Applicant has prepared further modelling which it describes as being based upon an approximation of the building mass “taken at its highest”. When challenged as to whether the relevant objectives of the ADG would be met, Ms Pressick conceded that they would (objectives 4A, 3B1 and 3B2).

59. Under cross-examination, Ms Pressick conceded that notwithstanding that a future development of Museum Lodge would result in some impact on the Units, this impact would not be such as to give rise to a refusal of consent, due to overshadowing. She also conceded that the shadow impact on the Units caused by such a hypothetical future development would not be unreasonable.

60. Accordingly, based on the evidence before the Court, which was not contested, any impact on solar access which could result from the further development of Museum Lodge is acceptable, insofar as that impact would not offend the ADG Guidelines as they relate to solar access.

61. Moreover, there may not even be any particular impact on the Site in the event of redevelopment of Museum Lodge. Mr Cirillo expressed the opinion that if a three metre setback were factored in to the modelling, that part of the redevelopment causing additional overshadowing as displayed on Mr Dickson’s drawings would not eventuate. I am persuaded by Mr Cirillo’s evidence in this regard.

62. With respect to a scenario which would result in a complete rebuild of Museum Lodge, I find that the opinions expressed in this regard are speculative. I also accept Mr Cirillo’s evidence that in terms of the potential future development of Museum Lodge, the potential impacts of such development on the Units are routine, would be routinely managed and would not in and of themselves prevent a fifth storey being added to Museum Lodge. There is no evidence before me to suggest that the development potential of Museum Lodge will be curtailed through the development being carried out at the Site in accordance with the proposed conditions of consent (that is, without condition 76).

63. I further observe that with respect to future development potential, the planning principle contained within Davies v Penrith City Council [2013] NSWLEC 1141 at [121] clearly sets out the approach to be taken when assessing impacts on neighbouring properties.

64. In view of my findings above, I make no finding with respect to the use of a “note”, other than to observe that there are limitations with respect to this device.

65. It is not necessary for me to make any findings in relation to the role of a s 149 certificate in this case. Having said that, I observe that under the present planning regime, diligent purchasers have access to considerable information to allow them to inquire as to potential future developments neighbouring their properties.

66. It was also submitted by the Council that the Court needed to be mindful of potential changes to the planning regime. Against this submission, it is uncontroversial that the Court must apply the law as it is stands at the time of the hearing of the dispute. Laws and policies can, and do, change over time, as indeed they must. There is already provision within the EPA Act for proposed changes to planning instruments to be taken into account: EPA Act s 79C(1)(a)(iii)).

67. The Council pressed upon this Court the desire by Tuor C to provide an alert to potential purchasers of the Units about potential impacts on their property. Accordingly, the Council urges that weight should be given to Tuor C’s intention. In response to this submission, I observe that Tuor C did not have the benefit of the additional evidence which has been prepared for this appeal in the form of the further shadow diagrams, and the evidence given in respect of them.

68. The Council has submitted that it is not appropriate to leave the issue (of notification of future purchasers) “hanging”. For the reasons set out above, I do not concur with that characterisation.

Orders

69. The Orders of the Court are:

1. The appeal is upheld.

2. Modification Application D/2015/421/A lodged with the Council on 17 October 2016 seeking deletion of condition 76 from development consent D/2015/421 granted by the Court as a consequence of proceedings number 2016/52934 is determined by approval.

3. The Exhibits, save for Exhibits A and C, are returned.

…………………………..

Rosemary Martin

Senior Commissioner

Decision last updated: 16 August 2017