Land and Environment Court New South Wales Medium Neutral Citation: Harrison v Woollahra Municipal Council [2020] NSWLEC 1341 Hearing dates: 23 and 24 June 2020 Date of orders: 31 July 2020 Decision date: 31 July 2020 Jurisdiction: Class 1 Before: Chilcott C Decision: The Court orders: (1) The appeal is dismissed. (2) The exhibits are returned, with the exception of Exhibits A and 6. Catchwords: MODIFICATION APPLICATION – proposed deletion of condition of consent – whether application is compliant with control C4 of clause 1.4.5 of Woollahra DCP – whether application achieves the objects of control C4 of clause 1.4.5 of Woollahra DCP Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Local Environment Plan 2014 Cases Cited: Baronja Investments Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1133 Jam Ventures Australia Pty Ltd v Inner West Council [2019] NSWLEC 1456 Zhang v Canterbury City Council [2001] NSWCA 167 Texts Cited: COVID-19 Pandemic Arrangements Policy, Land and Environment Court of NSW, 2020 Woollahra Development Control Plan 2015 Category: Principal judgment Parties: Sean Harrison (Applicant) Woollahra Municipal Council (Respondent) Representation: Counsel: A Gough (Solicitor) (Applicant) J Koprivnjak (Solicitors) (Respondent) Solicitors: Storey & Gough Lawyers (Applicant) HWL Ebsworth (Respondent) File Number(s): 2019/330290 Publication restriction: No Judgment 1. COMMISSIONER: Sean Harrison (the Applicant) has appealed the refusal by Woollahra Municipal Council (the Respondent) of his modification application DA384/2018/2 seeking the deletion of one condition, referred to as condition C.1(c) (the proposed modification), that formed part of a development consent granted for DA384/2018 (the original consent) which approved alterations and additions to a property (the Approved Development) at 43 Dudley Street, Paddington (the Subject Site). 2. The modification application was made under s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act), and the appeal is made pursuant to s 8.9 of that Act. The appeal falls within Class 1 of the Court's jurisdiction and the hearing is conducted pursuant to s 34(c) of the Land and Environment Court Act 1979 (the LEC Act), 3. The Subject Site is zoned R2 Low Density Residential under the provisions of Woollahra Local Environment Plan 2014 (WLEP) and is located within the Paddington Heritage Conservation Area (HCA). 4. The character of the Paddington HCA is described within the Woollahra Development Control Plan 2015 (WDCP) as: 1. a unique urban area of outstanding national heritage significance and the conservation of Paddington and its heritage significance should be the foremost outcome of development. 2. characterised by: 1. its historical development and associations. 2. its interrelationship of buildings, spaces, topography, landscape settings and land uses. 1. WDCP states that Paddington's sense of place and its significance results from a multi-layered interrelation of various built forms and spaces, and historical and social values. It also says that: "Paddington has a unique aesthetic significance due to the superimposition of the built form on a sloping topography which overlooks Sydney Harbour and its foreshores. The coherent and extensive Victorian built form comprising groups of terrace buildings on narrow allotments which step down hills, turn corners or sit in ranks along tree lined streets produces a singularly recognisable image." 1. The building on the Subject Site forms part of a terrace group as defined within the WDCP. That terrace group extends from the property at 35 Dudley Street to the Subject Site. 2. Condition C.1(c), which is the focus of the Applicant's modification application, was imposed by the Woollahra Local Planning Panel (WLPP) when it granted consent to DA384/2018, and required as follows: "C.1 Modification of Details of the Development (section 4.17(1)(g) of the EP&A Act) The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the following amendments: … c) The proposed upper level rear wing is to be a maximum length of 4.7m (towards the south) measured from the rear face of the principal building. The roof form to the ground floor shall be a maximum height of RL 59.750 to Australian Height Datum (AHD)." 1. Due to the COVID-19 pandemic, and consistent with the Court's COVID-19 Arrangements Policy, which commenced on 8 July 2020, the hearing was conducted by video conferencing technology and a site inspection was not undertaken. However, the Parties provided video and photographic evidence by way of substitution for a site view. 2. At the commencement of the hearing the Applicant sought leave to amend its modification application such that: 1. it may rely on amended plans; 2. it now seeks modification of condition C.1(c), rather than its deletion, as follows: 1. the condition should require that the consent be carried such that all works, their use and maintenance, will be in accordance with the amended plans for which leave is now sought; 2. the condition be further modified to provide that: 1. the proposed upper level rear wing is to be a maximum length of 7.5 metres (towards the south) measured from the rear face of the principal building. The roof form to the ground floor shall be a maximum height of RL 59.750 to AHD; 2. the rear first floor bedroom window is to be a double hung sash window. The lower sash shall be obscure glazed and be fixed (i.e non-openable); 3. the external wall on the south-east elevation is to be finished in face brick with mortar joints to be flush struck prior to the issue of the Occupation Certificate. 1. The leave sought by the Applicant was granted without objection. 2. The Applicant explained that it now sought to amend condition C.1(c) because its requirement that the proposed upper level rear wing should be a maximum length of 4.7m (towards the south), measured from the rear face of the principal building, did not provide it with the opportunity to achieve a master bedroom and two smaller bedrooms as had been the intent of its development application. 3. The Respondent tendered as evidence written objections from the following individuals, each of whom had previously lodged objections to the Applicant's modification application during its period of notification by the Respondent Council: 1. Mr Mark Richards and Ms Sarah Palmer, residents of a lot adjoining the Subject Site; 2. Mr Paul Dyer, a resident of a lot adjoining the Subject Site; 3. Ms Kate Eccles, a resident of a lot adjoining the Subject Site; 4. Mr Andrew Campbell and Ms Tracey Campbell, residents of a property in the vicinity of the Subject Site; 5. Mr Chris Allen and Ms Arianne Sweeting, residents of a lot adjoining the Subject Site; 6. Mr Michael Fielding and Ms Vanessa Fielding, residents of a property in the vicinity of the Subject Site; 7. Mr Mark Bergin-Fisher and Ms Phillippa Bergin-Fisher, residents of a lot adjoining the Subject Site, whose submission was accompanied by a number of attachments, including some photographs; 8. Mr Will Mrongovius, President of The Paddington Society; 1. The Respondent submitted, and I agree, that the objector submissions identified that the potential impacts of the proposed modification in relation to bulk/scale, solar access, privacy and outlook were the predominant concerns expressed in response to notification of the Applicant's modification application. 2. The Parties confirmed that, consistent with the Respondent's statement of facts and contentions in the appeal, the contentions to be addressed in the appeal related to the following matters: 1. the reasons for the Respondent's imposition of condition C.1(c), particularly in relation to the application of a more skilful design in response to condition C.1(c), as a means of mitigating the potential impacts of the Applicant's proposed modification of condition C.1(c); 2. the potential overshadowing impacts of the proposed modification on adjoining lots; 3. the impacts of the proposed modification on the character of the terrace group of which the property on the Subject Site was a member; 4. the potential overlooking and privacy impacts of the proposed modification in relation to adjoining lots; 5. whether the proposed modification is in the public interest. Statutory context Environmental Planning and Assessment Act 1979 1. The objects of the EP&A Act are as follows: (a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State's natural and other resources, (b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment, (c) to promote the orderly and economic use and development of land, (d) to promote the delivery and maintenance of affordable housing, (e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats, (f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to promote good design and amenity of the built environment, (h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants, (i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State, (j) to provide increased opportunity for community participation in environmental planning and assessment. 1. Section 4.15(3A) of the EP&A Act further provides that: 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. … 1. Section 4.17 of the EP&A Act concerns the imposition of conditions and subs 4.17(1) provides that: A condition of development consent may be imposed if — (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or (b) it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 4.11 in relation to the land to which the development application relates, or (c) it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or (d) it limits the period during which development may be carried out in accordance with the consent so granted, or (e) it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or (f) it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 4.15(1) applicable to the development the subject of the consent, or (g) it modifies details of the development the subject of the development application, or (h) it is authorised to be imposed under section 4.16(3) or (5), subsections (5) — (9) of this section or section 7.11, 7.12, 7.24 or 7.32. 1. Section 4.55(2) of the EP&A Act requires as follows: A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if— (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with— (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. 1. Section 4.55(3) of the EP&A Act requires that: (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. Woollahra Local Environmental Plan 2014 1. Development on the Subject Site is subject to the provisions of WLEP. The following provisions of WLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of WLEP. The Subject Site is zoned R2, and under the provisions of cl 2.3 of WLEP, the objectives of this zone are to: • 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 provide for development that is compatible with the character and amenity of the surrounding neighbourhood. • To ensure that development is of a height and scale that achieves the desired future character of the neighbourhood. Woollahra Development Control Plan 2015 1. Part A of WDCP supplements the requirements of WLEP and states that it must be read in conjunction with the WLEP. 2. The objectives of WDCP are as follows: "O1 To give effect to the aims of Woollahra LEP 2014. O2 To facilitate development that is permissible under Woollahra LEP 2014 with reference to the unique characteristics of the area where the development is proposed. O3 To achieve the objectives contained in Woollahra LEP 2014. O4 To establish controls that provide a balance between flexibility and certainty in the development assessment process. O5 (Repealed) O6 To establish a consistent set of definitions for terms used in the DCP" 1. Part A contains general provisions concerning development within the Woollahra Local Government Area, including definitions that guide interpretations of the provisions of WDCP. 2. Part C of WDCP provides guidance for development within certain heritage conservation areas, including the Paddington HCA within which the Subject Site is located. 3. Chapter C1 provides guidance for development within the Paddington HCA. The following sections of Chapter C1 are of relevance in this appeal: 1. Section C1.2.1 concerns the significance of the Paddington HCA, and notes that: "…Paddington has a unique aesthetic significance due to the superimposition of the built form on a sloping topography which overlooks Sydney Harbour and its foreshores. The coherent and extensive Victorian built form comprising groups of terrace buildings on narrow allotments which step down hills, turn corners or sit in ranks along tree lined streets produces a singularly recognisable image…" 1. Section C1.2.3 concerns character elements, and provides the following guidance in relation to alterations and additions to properties within the Paddington HCA: "…Additions and alterations to existing buildings and the construction of new buildings should be designed with respect to the architectural character of the building and the context of the significant streetscapes of the Paddington HCA. Retention of original fabric and detail is key." "… Alterations to the rear of properties require detailed consideration so as not to alter the proportion, scale and the cohesion in groups of buildings." 1. Section C1.2.4 concerns the desired future character of the Paddington HCA, and notes that that character should, inter alia: 1. retain the cohesive character evident in the low scale, high density built form; and 2. provide for sharing of views and vistas. 1. Section C1.3.4 concerns multi-storey terrace style housing, and: 1. notes that: "Multi-storey terrace housing includes mostly two and three storey terraces, some containing additional basement and attic levels. This housing was traditionally built in uniform rows; occasionally containing distinct subgroups or individual buildings within groups". 1. includes the following objectives: "O1 To retain and conserve the principal building forms of rows and groups of terraces. O4 To retain the shared distinctive characteristics of groups of buildings. O5 To retain, restore and promote the significance, contribution and relationship of a building within the context of a group of buildings. O8 To protect the amenity of adjoining or adjacent residential uses." 1. includes the following control of relevance to this appeal: "C1 Refer to objectives and controls in Section C1.4 General controls for all development and Section C1.5 Specific policy for building and site elements." 1. Section C1.4.3 concerns rear elevations, rear additions, significant outbuildings and yards, and 1. notes that: "There is a distinct typology of rear building forms within Paddington. Due to the elevated siting and topography of Paddington, many rear forms of buildings are highly visible". 1. includes the following objectives: O2 To ensure that rear alterations and additions are of sympathetic design and construction. O3 To ensure that the distinctive shared characteristics of groups of contributory buildings are retained and enhanced. 1. includes the following control of relevance to this appeal: "C5 Alterations and additions at the rear of buildings must: a) not dominate or otherwise adversely compete with the form, height, proportions and the scale of that part of the building which is to be retained; b) not reproduce or match a building which in terms of its height, bulk, scale and detailing is inappropriate to the heritage character of the area; …. e) be designed to minimise or avoid an adverse impact on neighbouring properties in terms of overlooking, loss of sunlight and ventilation; f) not extend beyond the predominant rear building setbacks at any level of a group or row of buildings". 1. Section C1.4.5 concerns building height, bulk, form and scale, and: 1. notes that: "The bulk, form and scale of buildings in Paddington are also important contributing elements to the character of the area generally and to the character and significance of groups of buildings." "The height bulk, form and scale of new development have the potential to adversely impact on the amenity of private and public lands." 1. includes the following objectives: "O1 To retain the distinctive height, bulk, form and scale of particular building types. O2 To retain the existing heights of single storey buildings. O3 To maintain the visual consistency of established heights in historically significant streetscapes. O4 To ensure that the height of new development conforms to the appropriate heights in the street or lane and the historic character of the street or lane. O5 To minimise the impact of new development on the access to sunlight for private properties and public places such as neighbourhood parks. O6 To protect the amenity of adjoining or adjacent residential uses." 1. includes the following controls of relevance to this appeal: "C3, The height, bulk, form and scale of infill and new development must be consistent with the predominant height, bulk, form and scale of appropriate adjoining buildings. Conformity with adjoining buildings is not appropriate in circumstances where the development site adjoins a building which is a substantially taller landmark building, or is a building considered to be intrusive due to its excessive height and incompatible design. C4, Infill development and alterations and additions must be designed and sited so that sunlight is provided to at least 50% or 35m² with minimum dimensions of 2.5m, whichever is the lesser, of the main ground level private open space of adjoining properties for a minimum of two hours between 9am and 3pm on 21 June. Where existing overshadowing is greater than this, sunlight is not to be further reduced. C5, Where adjoining dwellings have greater than three hours of sunlight to a habitable room, the north facing windows to the habitable room are not to have sunlight reduced to less than three hours between 9am and 3pm on 21 June." Contentions 1. As noted above at [8], at the commencement of the hearing, the Applicant sought, and was granted, leave to amend its modification application and to rely on amended plans. 2. I have also identified above at [13], the principle matters to be addressed in the appeal. 3. The Respondent said that it accepted, on the basis of agreement between the planning experts, that the fourth of the contentions identified above at [14(4)], concerning privacy and overlooking, could be resolved by an agreed condition of consent. The experts had also agreed that a portion of the third contention identified above at [14(4)], concerning potential impacts on the character of the terrace group may be resolved by imposition of an agreed condition of consent. 4. As a consequence of the Applicant's amended plans and the provision of expert reports, the principal questions requiring resolution in the appeal, and order in which I will address them, are as follows: 1. are the reasons provided by the Respondent for its imposition of condition C.1(c), particularly in relation to a question of the application of a more skilful design to mitigate the potential impacts of the Applicant's proposed modification, adequate for the purpose of s 4.17 of the EP&A Act? 2. are the potential overshadowing impacts of the proposed modification on adjoining lots acceptable? 3. are the impacts of the proposed modification on the character of the terrace group, of which the property on the Subject Site is a member, acceptable? 4. is the proposed modification in the public interest? 1. The Court was assisted in its consideration of these questions during the hearing by the evidence of the town planning/heritage experts Mr Brian McDonald, for the Applicant, and Mr Anthony Rowan, for the Respondent. 2. Before considering the principal questions for resolution in the appeal, I note that I have considered whether the development that is the subject of the consent, which the Applicant now seeks to modify, is substantially the same development as the development for which consent was originally granted, and I am satisfied that it is indeed substantially the same development. Consequently, the jurisdictional pre-requisite established under the provisions of s 4.55(2)(a) of the EP&A Act is met and I have power to determine the Applicant's modification application. Are the reasons provided by the Respondent for its imposition of condition C.1(c), particularly in relation to a question of the application of a more skilful design to mitigate the potential impacts of the Applicant's proposed modification, adequate for the purpose of s 4.17 of the EP&A Act? 1. Section 4.55(3) (see above at [19]) requires that the consent authority, or the Court on appeal, must take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. 2. Section 4.55(3) does not require the consent authority to consider the reasons provided by the WLPP for its refusal of the Applicant's modification application. 3. The Parties agreed that the reasons for the imposition of condition C.1(c) by the WLPP when it granted consent to DA 284/2018 were as follows: "The first floor extension on the common boundary would have an adverse impact on immediately adjoining properties to the south-east in relation to the visual bulk, overshadowing and outlook. It also would extend undesirably close to its rear boundary that the four adjoining terraces to the north-west because of the stepping of the common boundaries to the rear of this row. The setback recommended would be an acceptable compromise which would lessen these adverse impacts. It is considered that with more skilful planning it should still be possible to provide the master bedroom and two additional first-floor bedrooms, by alternative planning of the space within the main building." 1. The Applicant submitted that: 1. condition C.1(c) was imposed by the WLPP: 1. to address planning issues; and 2. to overcome adverse impacts associated with visual bulk, overshadowing and outlook. 1. the imposition of condition C.1(c) was not imposed to address heritage issues; and 2. the WLPP's views as to a more skilful planning outcome were not a reason for the grant of development consent, or alternatively was not a reason to which the Court would give weight in its assessment of this modification application. 1. The Respondent submitted that, consistent with the Applicant's submission above at [35(1)(a)], the WLPP imposed condition C.1(c) as part of the grant of consent so that the Approved Development: 1. would be subject to the amendment required by condition C.1(c); and 2. would be satisfactory with respect to all relevant planning policies, including the objectives of the WLEP and WDCP. 1. The imposition of conditions of consent are subject to the provisions of s 4.17 of the EP&A Act, which were identified above at [17]. These include provisions that conditions of consent may be imposed by a consent authority for the following purposes: (a) it relates to any matter referred to in section 4.15(1) of relevance to the development the subject of the consent, or …. (g) it modifies details of the development the subject of the development application, …. 1. As identified above at [34], condition C.1(c) was imposed to require modification to the Applicant's Approved Development in order to mitigate potential adverse impacts of that development. 2. It is my assessment that these reasons are consistent with subss 4.17(1)(a) and 4.17(1)(g) of the EP&A Act because: 1. they relate to the matters referred to in s 4.15(1)(a)(iii) concerning controls within the WDCP; 2. they relate to the matters referred to in s 4.15(1)(b) concerning the likely impacts of that development, and seek to mitigate those impacts; and 3. consistent with s 4.17(1)(g) they modify details of the development the subject of the development application. 1. While I note the Applicant's comment in relation to the final sentence of the reasons for imposition of condition C.1(c), that the achievement of a more "skilful planning" outcome is not a reason for the grant of development consent, it is my assessment that the reasons provided by the WLPP for the imposition of condition C.1(c) that were identified prior to that final sentence are consistent with the provisions of s 4.17 of the EP&A Act that establish the basis upon which conditions may be imposed in the grant of consent. 2. I conclude that, having considered the reasons given by the consent authority for the grant of the consent that is sought to be modified, the reasons provided by the WLPP for its imposition of condition C.1(c) are adequate for the purposes of s 4.17 of the EP&A Act. Are the potential overshadowing impacts of the proposed modification on adjoining lots acceptable? 1. During the hearing the Applicant provided further information in relation to the potential overshadowing impacts of the proposed modification through the provision of amended shadow diagrams which were tendered as Exhibit H. 2. The Respondent submitted that, contrary to the conclusion expressed in the submitted Applicant's Statement of Environmental Effects, the approved development was not compliant with the provisions of control C4 of clause C1.4.5 of WDCP (see above at [25(6)] and that this had been confirmed within the Applicant's amended shadow diagrams. The Respondent noted that the impact of the Applicant's Approved Development on adjoining properties in Queen Road would be as follows: (i) "No.6 formerly received 2.5 hours of winter sunlight above the minimum requirement which was reduced to about 1.75 hours; (ii) No.8 formerly had 2 hours of winter sunlight above the minimum requirement which was reduced to nil hours; and (iii) No.10 formerly had nil hours of winter sunlight above the minimum requirement, with sunlight further reduced for 2 hours, particularly from 2pm-3pm." 1. It was common ground between the parties that the Applicant's proposed modification of control C4 of clause C1.4.5 of WDCP would further impact on the solar access available to the rear yards of the adjoining properties in Queen Road, and that the level of solar access available in those properties would be in breach of control C4. 2. Indeed, the Applicant conceded in its written submissions that that its proposed modification of condition C.1(c) would not comply with the numerical standards in clause C1.4.5 of WDCP and would further reduce solar access to the properties in Queen Road as follows: 1. No. 6 Queen Road would not receive solar access to 50% of its open space area (or 22.38m2) for two hours on the winter solstice, in contravention of Control C4, but said that the non-compliance was minor between 1pm to 3pm, and it stated that the proposed modification would achieve "compliance for a period around 2pm". 2. No. 8 Queen Road would not receive solar access to 50% of its open space area (or 32.13m2) for two hours on the winter solstice, but noted that between 1pm to 3pm, it would receive direct sunlight to between 31.62% and 41.47% of its rear yard "in contravention of the DCP standard". 3. the proposed modification would result in a further reduction in sunlight to properties who have existing levels of sunlight under the standard. 1. The Applicant said that, because the application is for modification of a development consent under s 4.55 of the EP&A Act, and is not for a "development application" per se: 1. s 4.15(3A) of the EP&A Act (see above at [16]) does not strictly apply, citing Baronja Investments Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1133 (Baronja) and Jam Ventures Australia Pty Ltd v Inner West Council [2019] NSWLEC 1456 (Jam Ventures); and 2. because control C4 is a provision within a DCP, the Applicant's non-compliance with the control should be given significant, but not determinative, weight in the Court's consideration of the application, citing Zhang v Canterbury City Council [2001] NSWCA 167 (Zhang). 1. The Applicant also noted that in applying the principles of Zhang within Jam Ventures, Gray C had observed (at [54]) that: "As such whilst the proposed drainage system is contrary to a number of specific LDCP2013 controls identified by Council, it achieves the objectives of those particular controls. This is a sufficient basis on which to exercise flexibility to allow the stormwater drainage design as proposed and to remove the deferred commencement condition requirement the creation of the easement for drainage. This is consistent with flexibility mandated by s 4.15(3A) for a development application, although s 4.15(3A) does not strictly apply to the present modification application. It is also consistent with the principles in Zhang v Canterbury City Council [2001] NSWCA 167…." 1. I agree with the Applicant that, consistent with the findings of Gray C in Jam Ventures and with the principles in Zhang, I should apply flexibility in the application of the provisions of clause C1.4.5 of the WDCP and so consider whether the Applicant's modification application achieves the objectives of control C4 concerning solar access impacts. Those objectives were identified above at [25(6)(b)]. 2. The specific objectives of clause C1.4.5 of WDCP of relevance in this appeal are objectives O5 and O6 as follows: O5 To minimise the impact of new development on the access to sunlight for private properties and public places such as neighbourhood parks. O6 To protect the amenity of adjoining or adjacent residential uses. 1. The Applicant's submissions in relation to Objective O5 were that: "… the impacts of shadow have been minimised. The Court would note that the development has been kept to a minimum height utilising minimum floor to ceiling heights, and the roof has been designed to provide a lower eave level to reduce the amount of shadowing as much as possible. Indeed the resulting development would have the bulk of a single storey structure when viewed from No. 6 and 8 Queen Road." 1. In relation to Objective O6, the Applicant said that should the modification application be approved the solar access that would be available within the adjoining properties would be sufficient to provide for an acceptable level of amenity. In support of this submission, the Applicant said that: 1. it had been Mr McDonald's evidence within the joint report of the planning/heritage experts that the amount of sunlight lost as a consequence of the proposed modification would be proportionally low in comparison with the amounts of sunlight retained; 2. the additional overshadowing falls only proximate to the rear boundary, and so the impact will not change the amenity of the affected properties; 3. the proposed modification is for a "modest" three bedroom development, having room sizes that are very confined, a very efficient layout and that the reasons of the Respondent Panel's decision for granting consent to the approved development acknowledged the reasonableness of an application that sought consent for an addition to provide a master bedroom and two additional bedrooms; 4. the affected adjoining properties are vulnerable to impacts from adjoining properties because the area in which the Subject Site is located is densely built up, the allotments are orientated in an east-west direction, and the side and rear boundary fences are high; 5. the avoidance of the overshadowing impacts that would arise through the amendment to condition C.1(c) would require the deletion of the third bedroom which the Applicant had sought to achieve through its development application, and the removal of which would represent the loss of reasonable development potential of the Subject Site. 1. The Respondent, in opposing the approval of the Applicant's modification application, said that the proposed modification to condition C.1(c): 1. did not lessen the impacts on solar access to any substantial degree; 2. would result in an unreasonable non-compliance with the solar access provisions of control C4 in clause C1.4.5 of WDCP, and would also result in adverse amenity impacts on neighbouring properties; and 3. was not supported by the evidence of Mr Rowan who had said, inter alia, within the joint report of the planning/heritage experts that: 1. the controls in WDCP, including control C4, have been "prepared" in the knowledge that lots within the Paddington HCA were narrow and linear in character, and were responsive to this character; 2. control C4 provided the basis by which minimal standards of solar access could be retained within the context of the Paddington HCA; and 3. a reduction in the amount of solar access below that required under the provisions of control C4 should not be 'expected' by neighbouring property owners. 1. Having considered the submissions of the Parties, and the evidence of the experts during the hearing and in their joint report, I have concluded that: 1. I do not embrace the submissions of the Applicant, and the evidence of Mr McDonald supporting those submissions, because: 1. Objective O5 of control C4 is that the impact of new development on the access to sunlight available to private properties should be minimised, and is not that the impact should be "proportionally low in comparison with the amounts of sunlight retained" as proffered by Mr McDonald; 2. control C4 does not provide that consideration should be provided to the location of the additional overshadowing, as suggested by the Applicant when it stated that the overshadowing falls proximate to the rear boundary. Rather, as identified by the Respondent, control C4 is numerically-based and not locationally-based. Consequently, the location of the potential impact of the modification application must carry less weight than the numeric impact of the proposed modification; 3. the submissions of the potentially affected owners of adjoining lots (see above at [12]) was that the proposed modification to condition C.1(c) would directly impact on their amenity, specifically in relation to solar access, and contrary to the assertion of the Applicant that the impacts will not change the amenity of the affected properties; 4. notwithstanding that the WLPP may have identified that the Applicant's desire for a three bedroom addition was reasonable, such an outcome cannot be an expectation, and any application that the Applicant may make to achieve its desired outcome will always be subject to various statutory controls and development standards, and the possibility of the imposition of conditions to provide compliance with those controls; 5. the fact that the potentially affected adjoining properties are vulnerable because the area in which they are located is densely built up does not, in my assessment, constitute a reason that would justify a non-compliance of a control. It is my assessment that controls, such as control C4, have been put in place specifically to provide a basis for making decisions within the densely built up Paddington HCA, and in direct response to the fact that such areas include properties that are vulnerable to the impacts of development; 6. the reasonable development potential of the Subject Site is a product of the site taken together with the controls and development standards applicable to that site. Those standards and controls do not establish a basis for the outcome of a development application with respect to the number of bedrooms that may be achieved by that application. 1. I agree with, and adopt, the submissions of the Respondent above (at [52]) and find that the Applicant's application to modify condition C.1(c) does not achieve the objectives of clause C1.4.5 of WDCP because it does not: 1. minimise the impact of new development on the access to sunlight for private properties; and 2. protect the amenity of adjoining or adjacent residential uses. 1. Consequently, I find that the Applicant's proposed modification of condition C.1(c) is not compliant with the numeric controls within control C4 of clause C1.4.5 of WDCP and also does not achieve the relevant objectives of that control. 2. Further, I note that my finding in relation to the proposed modification's non-compliance with control C4 of clause C1.4.5 provides a basis for me to conclude that the proposed modification also: 1. does not comply with control C5(e) of clause C1.4.3 of WDCP (see above at [25(5)(c)]) because it does not avoid an adverse impact on neighbouring properties in terms of loss of sunlight; and 2. is not of a sympathetic design and construction and so does not achieve Objective O4 of clause C1.4.3 of WDCP (see above at [25(5)(b)]). Are the impacts of the proposed modification on the character of the terrace group, of which the property on the Subject Site is a member, acceptable? 1. The guidance and controls relevant to my consideration of this question are those within cll C1.2.3 and C1.2.4 of WDCP as identified above at [25(2)] and [25(3)]. 2. The contest between the Parties on this question focused on whether or not the modification application would result in a built form that would be consistent with the character of the terrace group of which it forms part. There was no contest between the Parties in relation to whether the proposed modification would be beneficial to, or enhance, the character of the terrace group. 3. Having reached the conclusion above (at [54]) with respect to the solar access impacts of the proposed modification I am of the opinion that it is unnecessary for me to assess in detail the potential impacts of the proposed modification on the character of the terrace group for the following reasons: 1. if I were to give consideration to the potential impacts of the modification application on the character of the terrace group, the outcome of such a consideration would be either that: 1. the potential impacts of the proposed modification of condition C.1(c) on the character of the terrace group were not acceptable, in which case my finding at [54] would be further supported through the identification of an additional reason for not approving the modification application; or 2. the potential impacts of the proposed modification of condition C.1(c) on the character of the terrace group were acceptable because they did not detract from the character of the terrace group, which on the basis of my observation above at [56], would suggest that those impacts were neutral with respect to impact on character. While such a conclusion would not provide a reason for refusal of the application, nor, in my assessment, would it be sufficient to justify its approval in circumstances where I have found that the proposed modification is non-compliant with another control in WDCP and where the breach of that other control is clear and accepted by both Parties. 1. a finding of neutral impact on character of the terrace group of which the Subject Site forms part, while not establishing a reason for refusal of the application, would nevertheless need to be set against the finding of non-compliance, and established adverse environmental impact with respect to the provisions of control C4 of clause C1.4.5 of WDCP. 2. in the circumstances identified above at [(1)] and [(2)], even if the impact of the proposed modification on the character of the terrace group was assessed to be neutral, this would not, in my view, prevail over a finding that the proposed modification was non-compliant with control C4 which has a clear numeric basis for the regulation of solar access impacts of neighbouring properties within a densely built-up area. Conclusions 1. Having considered the submissions of the Parties, and the testimony of the planning/heritage experts, in this appeal, I conclude that the Applicant's application to modify condition C.1(c) imposed by WLPP in relation to its consent to DA 384/2018, should not be approved because: 1. as confirmed above at [41], having considered the reasons given by the consent authority for the grant of the consent that is sought to be modified, the reasons provided by the WLPP for its imposition of condition C.1(c) are adequate for the purposes of s 4.17 of the EP&A Act; 2. as confirmed above at [54], the Applicant's proposed modification of condition C.1(c) is not compliant with the numeric controls within control C4 of clause C1.4.5 of WDCP and also does not achieve the relevant objectives of that control; 3. as confirmed above at [58], and for reasons provided therein, even in circumstances where the impact of the proposed modification on the character of the terrace group was assessed to be of neutral impact, this could not, in my assessment, prevail over a finding that the proposed modification was not compliant with control C4 in clause C1.4.5 of WDCP concerning solar access impacts of the proposed modification. 1. As noted above at [46(2)], I accept that the principles for consideration of DCP controls within Zhang is generally that a non-compliance with a control should be given significant, but not determinative, weight in the Court's consideration of an application. 2. However, in this appeal, I have concluded that the proposed modification does not achieve the numerical provisions or the objectives of control C4 of clause C1.4.5 of WDCP, nor does it achieve control C5(e) of clause 1.4.3 of WDCP and Objective O2 of that clause. 3. Given that the consistency or otherwise of the application with the character of the terrace group could not in my assessment prevail over the solar access impacts of the proposed modification, the non-compliance of the proposed modification with control C4 of clause C1.4.5 of WDCP, along with the non-compliance with control C5(e) of clause 1.4.3 of WDCP, is sufficient to be determinative in this matter. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned, with the exception of Exhibits A and 6. …………………. M Chilcott Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2020