Land and Environment Court New South Wales Medium Neutral Citation: Casaceli v Sutherland Shire Council [2021] NSWLEC 1100 Hearing dates: 5 February 2021 Date of orders: 26 February 2021 Decision date: 26 February 2021 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, B and 1. Catchwords: MODIFICATION APPLICATION – pergola over an approved rooftop terrace – modification is substantially the same development – unacceptable bulk and scale – potential privacy and overlooking impacts Legislation Cited: Environmental Planning and Assessment Act 1979 s 4.55 Environmental Planning and Assessment Regulation 2000 Land and Environment Court Act 1979 s 34 Sutherland Shire Local Environmental Plan 2015 cll 2.1, 2.2, 2.3, 4.3, 3.3, 6.16, 6.17 Texts Cited: Sutherland Shire Development Control Plan 2015 Category: Principal judgment Parties: Lucas Casaceli (Applicant) Sutherland Shire Council (Respondent) Representation: Counsel: Lucas Casaceli (Self Represented) (Applicant) J Amy (Solicitor) (Respondent) Solicitors: Sutherland Shire Council (Respondent) File Number(s): 2020/209061 Publication restriction: No Judgment 1. COMMISSIONER: Mr Lucas Casaceli (the Applicant) has appealed the decision of Southerland Shire Council (the Respondent) to refuse his application (Ref: MA20/0085) (the Subject Application) to modify the Respondent's grant of consent in relation to DA15/1088. The Subject Application seeks approval for the construction of pergola structures on rooftop terraces associated with his previously approved development (the Proposed Modification) at 9 and 9B Allison Road in Cronulla (the Subject Site). 2. The appeal comes to the Court pursuant to the provisions of s 4.55(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). 3. Subsequent to the appeal being filed, the Applicant sought leave to amend its modification application, and leave was granted by the Court without objection. 4. The Respondent confirmed that the Subject Application had been notified as required under the EP&A Act, the Environmental Planning and Assessment Regulation 2000 (EP&A Regulations), and the provisions of Sutherland Shire Development Control Plan 2015 (SSDCP) and it provided copies of two objections and a letter of support at the commencement of the proceedings. The objections had raised matters in relation to: 1. potential impacts in relation to privacy and overlooking; 2. potential impacts in relation to streetscape and urban design; 3. the process of approvals granted to the Applicant for works on the subject site which involved various modification applications across an extended period. 1. The letter of support had noted that, in the opinion of the author, the Proposed Modification did not give rise to concerns in relation to bulk and scale of the building on the Subject Site. 2. The appeal had been the subject of a conciliation conference convened under s 34 of the Land and Environment Court Act 1979 and I had presided over that conciliation conference on 22 October 2020. 3. As part of a conciliation conference the Court, together with the Parties and the Respondent's expert town planner, had undertaken an inspection of the Subject Site and the building for which the Subject Application seeks approval for the Proposed Modification. 4. The Parties agreed that I should hear the appeal and I have taken account of matters observed during the site view in relation to the contentions that remain in the appeal. 5. The Applicant's plans, as amended, and upon which he relies, propose the construction of rooftop pergolas above existing and approved rooftop terraces on the Subject Site, along with the provision of new windows and awnings along the eastern and western elevations of the building. 6. The Applicant no longer proposes to enclose the rooftop terrace pergolas and, as a consequence, the Respondent concedes that the Applicant's Proposed Modification does not involve the construction of an additional storey to the approved development on the Subject Site. The Respondent also confirms that the Proposed Modification complies with the height of building and floor space ratio development standards applicable to the Subject Site under the provisions of cll 4.3 and 4.4 of Sutherland Shire Local Environmental Plan 2015 (SSLEP), respectively. 7. The Applicant, Mr Casceli, states that he seeks approval for the proposed pergola structures so that the rooftop terraces that are approved on the Subject Site are able to be better utilised by his family. 8. The Respondent states that while the Applicant's amended plans had resolved certain of the contentions originally put in the case, the contentions relating to the height, urban design and matters raised by objectors remained pressed in the appeal. Statutory context Environmental Planning and Assessment Act 1979 1. Section 4.55(2) of the EP&A Act provides as follows: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if – (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (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. Sutherland Shire Local Environmental Plan 2015 1. Development on the Subject Site is subject to the provisions of SSLEP. The following provisions of SSLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area to which the plan applies as provided in cl 2.2 of SSLEP. 2. The Subject Site is zoned R4 High Density Residential, and under the provisions of cl 2.3 of SSLEP, the objectives of this zone are to: • provide for the housing needs of the community within a high density residential environment. • provide a variety of housing types within a high density residential environment. • enable other land uses that provide facilities or services to meet the day to day needs of residents. • encourage the supply of housing that meets the needs of the Sutherland Shire's population, particularly housing for older people and people with a disability. • promote a high standard of urban design and residential amenity in a high quality landscape setting that is compatible with natural features. • minimise the fragmentation of land that would prevent the achievement of high density residential development. 1. Clause 6.16 of SSLEP which concerns general matters of urban design and which provides as follows: (1) In deciding whether to grant development consent for any development, the consent authority must consider the following— (a) the extent to which high quality design and development outcomes for the urban environment of Sutherland Shire have been attained, or will be attained, by the development, (b) the extent to which any buildings are designed and will be constructed to— (i) strengthen, enhance or integrate into the existing character of distinctive locations, neighbourhoods and streetscapes, and (ii) contribute to the desired future character of the locality concerned, (c) the extent to which recognition has been given to the public domain in the design of the development and the extent to which that design will facilitate improvements to the public domain, (d) the extent to which the natural environment will be retained or enhanced by the development, (e) the extent to which the development will respond to the natural landform of the site of the development, (f) the extent to which the development will preserve, enhance or reinforce specific areas of high visual quality, ridgelines and landmark locations, including gateways, nodes, views and vistas, (g) the principles for minimising crime risk set out in Part B of the Crime Prevention Guidelines and the extent to which the design of the proposed development applies those principles. 1. Clause 6.17 of SLEP, which concerns matters of urban design in relation to residential developments and which provides as follows: In deciding whether to grant development consent for development for the purposes of residential accommodation the consent authority must consider the following— (a) the extent to which recognition has been given in the design of the development to the needs of the diverse and changing population of Sutherland Shire, (b) the extent to which any adverse impacts of the development on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion, will be minimised, (c) the extent to which the quality of the streetscape concerned will be improved by the development, (d) the extent to which there will be private open space of a sufficient area and dimensions to enable proposed and required activities, (e) the extent to which any adverse impacts of the development on adjoining land, in terms of size, bulk, height, scale and siting, will be minimised, (f) the extent to which the residential accommodation concerned integrates with a well-designed landscaped setting, (g) any opportunities for the provision of affordable housing. Sutherland Shire Development Control Plan 2015 1. The Proposed Modification is subject to the provisions of SSDCP, and following are the provisions of relevance to this appeal: 1. Part C of Chapter 5 of SSDCP provides controls in relation to multi-dwelling housing in the R4 High Density Residential Zone, and relevantly provides in relation to the appeal that is the subject of this judgment: 1. Section 1 concerning streetscape and building form, which includes the following objective and controls: "1.1 Objectives … 3. Ensure development is compatible with the scale, character and landscape setting of the streetscape, natural setting and scenic quality. … 1.2 Controls … 5. Development must be limited to three storeys in height including any basement. Dwellings may be stepped down a steep slope. … 8. Facades are to be composed with an appropriate scale, rhythm and proportion, which respond to the desired character of a locality." 1. Section 2 concerning building setbacks, which provides the following objectives and controls of relevance in this appeal: " 2.1 Objectives 1. Establish the street proportions. 2. Encourage articulated building forms and ensure garages do not dominate the streetscape. 3. Enhance the setting for the building by providing opportunities for landscaping and infiltration of stormwater and protecting the landscape qualities and character of the locality. 4. Promote residential amenity for residents and neighbours including access to natural light and ventilation and both visual and acoustic privacy. 5. Alleviate the visual intrusion of building bulk on neighbouring properties. 6. Minimise view loss from adjoining or nearby properties. 2.2 Controls Street, side and rear setbacks are measured perpendicular from the property boundary to the closest extent of the building, including balconies, awnings, podiums, sunscreens and the like (excluding eaves). The minimum setbacks required are set out in the table below: " Contentions 1. The Subject Application was made under s 4.55(2) of the EP&A Act, the provisions of which are provided above at [13]. 2. Section 4.55(2)(a) of the EP&A Act provides that a consent authority may approve a modification to a consent if 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). 3. The Respondent has confirmed that, in its assessment, the Applicant's modification application is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. 4. Further there are no matters of concurrence requiring consultation with a Minister or public authority concerning conditions of consent issued in relation to a concurrence or in relation to general terms of approval issued, and the Applicant's Modification Application has been notified as required under the provisions of SSDCP and the EP&A Regulations. 5. As a consequence of the facts noted above (at [18] and [19]) the Court's powers to determine the application are enlivened. 6. At the proceedings the Respondent drew the Court's attention to the assessment report prepared by Council's development assessment officer, Ms Teille Whiteman, to assist in the Respondent's determination of the application. 7. The Respondent noted that the Subject Application as originally lodged had been refused for reasons relating to potential overdevelopment and streetscape impacts, potential construction impacts and potential privacy impacts. 8. In particular the Respondent drew the Court's attention to the report's summary assessment in which Ms Whiteman had said that: "The main issue with the addition of the fifth story is that the bulk and scale of the building would not be suitable for a 10.97 m wide property. Chapter 5.1.2.1 of the SSDCP recognises that a 20m site with is appropriate for a multi-dwelling housing development and a narrow site may not allow for the full floor space ratio to be realised without having adverse impacts on the streetscape and the landscape setting of the locality. Specifically for this site, the addition of a fifth story is not compatible with the existing or desired future character of the street which is characterised by large residential flat building developments, with adequate setbacks and screen planting to offset the bulk and scale of the developments. It is noted a recently constructed residential flat building on the eastern side of Clyde Street has a partially enclosed communal roof top terrace area, which required a variation to building height development standard. This proposed development is not comparable to this development due to the difference in development type, scale and overall site area. Specifically the residential flat building has a much bigger building footprint which allowed for adequate boundary setbacks and opportunity for substantial plantings to offset the visual scale of the enclosed roof top terrace area which cause minimal amenity impacts to neighbouring properties and streetscape stop The extremely narrow width of the subject site does not allow for adequate setbacks to the multi-dwelling housing development which negates opportunity for these mitigating measures including increased setbacks and landscaping. These issues were identified during the assessment of modification application MA16/0433 which approved stair access to the open rooftop terraces two townhouses 9 and 9B. This resulted in a condition of consent be imposed restricting any further rooftop structures being erected. Further to the above, this application proposes various external changes to the Clyde Street elevation of the building in new vent windows to the storage area townhouse nine, and awning over second story balcony to townhouse nine which further reduces the secondary street setback and awning over a second story window to townhouse 9B. These architectural elements have not been well considered or aligned with architectural features of the building. This creates visual clutter to the street facing facade, further distracting from the streetscape. The fifth story addition and poorly resolved modification to the Clyde Street elevation contrary to the objectives of the R4 high density residential zone and the urban controls in SSLEP15. These poorly resolved changes to the building are 'tacked' on elements which are not essential for the usability of the multistorey housing development and are at the expense of a heist standard of urban design and cannot be offset by improvements to the landscape setting". 1. The Respondent relies on a further expert town planning report prepared by Ms Whiteman, adduced under direction from the Court, and tendered as evidence at the hearing. 2. In tendering this report, Ms Amy, for the Respondent, noted that, prior to the proceedings commencing at Court, she had advised the Applicant, who is self-represented in this appeal, that he may be assisted in the conduct of the appeal by legal representation and/or the services of a qualified town planner. . 3. Notwithstanding that advice, the Applicant has chosen not to engage legal representation nor the services of an expert town planner. 4. In her more recent expert town planning report, Ms Whiteman confirmed that, in her opinion: 1. the Applicant's proposed modification would be contrary to the provisions of cl 6.16 of SSLEP (see above at [14(3)], for the following reasons: 1. the proposal fails to result in an appropriate development outcome for the site. The building bulk and scale is incompatible with the desired future built form and is disproportionate to the lot size. The monolithic design of the building will have a detrimental effect on the streetscape character and will result in adverse impacts for adjoining properties; 2. the fifth storey addition and the fenestration modifications to the Clyde Street elevation are poorly resolved and 'tacked' on elements which are not essential for the usability of the multi dwelling housing development. These modifications are at the expense of a high standard of urban design and cannot be offset by improvements to the landscape setting due to minimal site setbacks; 3. the built form has been the result of multiple applications and development creep rather than a holistic and well resolved approach to the constrained site; 4. the various external changes to the Clyde Street elevation results in a poorly resolved architectural aesthetic. Window placement and design misinform the placement of floor levels and result in a further reduction in the quality of the buildings primary elevation; 1. the Applicant's proposed modification would be contrary to the provisions of cl 6.17 of SSLEP (see above at [13(4)]) for the following reasons: 1. the construction of pergola structures over the rooftop terrace areas may increase overshadowing impacts arising from the Subject Site; 2. the roof top terraces bring into question the Applicant's capacity to assure the longer term retention of planting features approved in relation to the for the rooftop terrace areas and which the Respondent said were required to minimise overlooking of adjoining properties; 1. the proposed modification is not consistent with the objectives of the R4 High Density Residential zoning applicable to the Subject Site, and in particular the objective which promotes a high standard of urban design in a high quality landscape setting (see above at [14(2)]) because: 1. the dwellings on the Subject Site rely on street trees to ameliorate visual impacts of the buildings' tall built form when viewed from some vantage points along Clyde Avenue; 2. no other effective screen vegetation exists on the Subject Site or the adjacent street verge to ameliorate adverse visual impacts when the building on the Subject Site is viewed from the southern part of Clyde Avenue, Allison Road or the adjoining properties. 1. the proposal is contrary to the provisions of section 1 of Part C in chapter 5 of SSDCP (see above at [15(1)(a)]), for reasons provided in her expert report as follows: 1. the scale and proportion of the built form does not respond to the desired character of the locality and offends the provisions of objective 8 in chapter 5.1.2 of SSDCP; 1. the proposal is contrary to the provisions of Section 2 of Part C in Chapter 5 of SSDCP (see above at [15(1)(b)]), for reasons provided in her expert report as follows: 1. the approved and proposed parts of the building do not comply with setback controls within chapter 5.2.2 of SSDCP; and 2. this non-compliance with setback controls then prevents adequate building separation and exacerbates the bulk and scale of the multi dwelling housing building on the Subject Site; 1. the proposed roof structures over each rooftop terrace would extend to the edges of the building and would add to the overall visual height and scale of the structure, which wold be an unacceptable outcome; 2. the proposed rooftop structures would be visible from the property at 11 Allison Road and would add to the height and visual scale of the building when viewed from that adjacent property, which would be an inappropriate response to the Subject Site's constraints including its narrow configuration and limited screen plantings; 3. the increased use of the rooftop terrace that would result from approval of the proposed modifications would increase the opportunity for overlooking of neighbouring properties and so result in potential privacy impacts. 1. Ms Whiteman had stated that the Applicant's proposed modification would further increase the disproportionate height of the existing building which: 1. is located on a constrained and narrow site; 2. had insufficient opportunity to provide adequate setbacks; and 3. was already sufficiently tall without the addition of further built form at the level of the roof. 1. Ms Whiteman also stated that the Applicant had not provided certain information in the format required to facilitate proper assessment of the modification application n by the Court. In particular, Ms Whiteman said that: 1. the Applicant's architectural plans were not coloured in order to illustrate the proposed modification in relation to the existing consented development; 2. the Applicant's architectural plans were not drawn to a 1:100 scale as required by Council in its directions to applicants, and as required under the provisions of the EP&A Act and EP&A Regulations; 3. the Applicant had not provided any overshadowing plan for its proposed modifications and as a consequence the potential overshadowing impacts of his proposed modification were unable to be assessed. 1. Neither Party required Ms Whiteman to be called for cross examination in the proceedings. 2. In their submissions: 1. The Applicant said that: 1. his proposed rooftop structures: 1. would provide cover to some 60% of the rooftop area; 2. were of an open design that would provide significantly improved amenity to his family's use of the terrace areas; and 3. would not be seen by an observer at the road level; 1. it was necessary to construct the proposed pergola structures at the edge of the building in order that their footings would be secure and so that they avoided the waterproofing membranes underneath the rooftop terrace areas; 2. the Proposed Modification, if approved, would not, in his view, be too high as it would be lower in height than a building located opposite the Subject Site that he said breached the applicable height of buildings development standard; 3. the landscaping that exists around the Subject Site, which includes a number of casuarina trees, provided sufficient screening to the Proposed Modification; 4. the proposed pergola structures were, in his view, lightweight and would not be detrimental to the appearance of the existing building; 1. the Respondent said that the Applicant's modification application should not be approved because: 1. for the reasons provided in the expert report of Ms Whiteman, upon which it relies, the Applicant's proposed modifications was not consistent with the provisions of cll 6.16 and 6.17 of SSLEP, nor with the provisions of Part C Chapter 5 Sections 1 and 2 of SSDCP; 2. the Applicant had provided no expert evidence to support a position contrary to the expert opinions provided by Ms Whiteman; 3. the Applicant had not provided any expert evidence to support his submission in relation to proposition that the proposed pergola structures were required, for engineering reasons, to extend to the edges of the rooftop terrace areas; 4. the Applicant had not provided adequate information for his modification application to be fully assessed, including in relation to the provision of shadow diagrams to facilitate the assessment of potential overshadowing impacts. 1. I have considered the submissions of the Parties, and the evidence provided by Ms Whiteman, in this appeal and have concluded that I agree with the Respondent that the Applicant's Modification Application should not be approved, because, consistent with the evidence of Ms Whiteman (see above at [27], [28] and [29]), which I accept: 1. the Applicant's Proposed Modification is not consistent with the provisions of cl 6.16 (1)(a) and (b) of SSLEP because the Proposed Modification: 1. would not attain high quality design and development outcomes for the urban environment of Sutherland Shire; 2. is not designed to strengthen, enhance or integrate into the existing character of the neighbourhood and streetscape of the Subject Site; and 3. would not contribute to the desired future character of the locality of the Subject Site; 1. the Applicant's Proposed Modification is not consistent with the provisions of cl 6.17(b), (c), (e) and (f) of SSLEP because the Proposed Modification: 1. does not minimise potential adverse impacts on adjoining land and open space, in terms of overshadowing, overlooking, views, privacy and visual intrusion; 2. would not improve the quality of the streetscape in the vicinity of the Subject Site; 3. does not minimise potential adverse impacts on adjoining land, in terms of size, bulk, height and scale; 4. does not integrate with the approved landscaping on the rooftop terrace which would otherwise provide for an area of vegetation along the edges of the rooftop terraces; 1. the Applicant's Proposed Modification is not consistent with the provisions of Part C Chapter 5 Sections 1 of SSDCP because: 1. if approved, the modified building would not have a façade with an appropriate scale, rhythm and proportion, and it would not respond to the desired character of the locality; and 2. it would not achieve objective 3 of this section as it is not, in my assessment, compatible with the scale, character and landscape setting of the streetscape, natural setting and scenic quality of the area within which the Subject Site is located; 1. the Applicant's Proposed Modification is not consistent with the provisions of Part C Chapter 5 Sections 2 of SSDCP because: 1. I accept the submission of the Respondent that the controls in this section apply to structures generally, and located at or above the levels referred to as storeys in the controls, including pergolas; 2. it does not provide a minimum 1m setback from the level below as the proposed pergola structures would be constructed to the edge of the roof terrace areas of the buildings on the Subject Site as required for levels at, or above, level 3 under Table 1 of this section; 3. it does not achieve objectives 3, 4 and 5 of that section because: 1. it does not enhance the setting for the building by providing opportunities for landscaping; 2. it does not promote residential amenity for neighbours in relation to visual privacy; 3. It does not alleviate the visual intrusion of the bulk of the building on the Subject Site on neighbouring properties. Orders 1. The orders of the Court are: 1. The appeal is dismissed; 2. The exhibits are returned, with the exception of Exhibits A, B and 1. .……………................ 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: 26 February 2021