Land and Environment Court New South Wales Medium Neutral Citation: Garling v Northern Beaches Council [2022] NSWLEC 1512 Hearing dates: Conciliation conference on 8 and 9 August 2022 Date of orders: 20 September 2022 Decision date: 20 September 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is upheld; (2) Development consent no DA2016/0963 is modified in the terms in Annexure A. (3) Development consent no DA2016/0963 as modified by the Court is Annexure B. Catchwords: DEVELOPMENT APPEAL – conditions of consent – modification of development consent – consideration of objector submissions - conciliation conference – agreement between the parties - orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9 Land and Environment Court Act 1979, ss 34, 34AA, 38, 39 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy (Resilience and Hazards) 2021 State Environmental Planning Policy 55 – Remediation of Land Warringah Local Environmental Plan 2011, cll 2.3, 2.7, 6.1 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Jon Garling v Northern Beaches Council [2022] NSWLEC 102 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 Texts Cited: Warringah Development Control Plan 2012 Category: Principal judgment Parties: Jon Garling (Applicant) Northern Beaches Council (Respondent) Representation: Counsel: J Reid (Applicant) A Gough (Solicitor) (Respondent) Solicitors: Sattler & Associates Pty Ltd (Applicant) Storey & Gough Lawyers (Respondent) File Number(s): 22/80407 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the determination of modification application MOD2021/0235 seeking to modify or delete a number of conditions of development consent DA2016/0963 as modified by MOD2019/0253 (the Proposed Development) at 24 Lancaster Crescent Collaroy, legally described as Lot 3 Section 10 in Deposited Plan 11899 (the Site). 2. The case is about privacy and view impacts on adjacent neighbours. 3. The Court arranged a conciliation conference under s 34AA(2) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 8 and 9 August 2022. I have presided over the conciliation conference. 4. The proceedings commenced onsite and the Court heard from adjacent neighbour objectors and also attended each of the neighbouring properties. One of the neighbours had a legal representative, Mr Peter Tomasetti SC, who spoke on their behalf and provided to the Court a folder containing their written submissions dated 8 August 2022 and documents referred to in those submissions (Objector's Folder). A copy of the Objector's Folder was not provided to the Respondent or the Applicant and the objector's legal representative relied on s 39(4) of the LEC Act, but I think can also rely on s 38(2) of the LEC Act. I also note that within the Objector's Folder at Tab 7 is a document titled Draft Second Respondent Statement of Facts and Contentions which is not referred to within the written submission. Later in this judgment I consider the draft contentions which were proposed to be put to the Court by the proposed second respondent as these are addressed by the parties. 5. The Objector's Folder contains numerous documents relating to Class 4 proceedings brought by Joanne Jefferies and the resulting mediated consent court orders (Class 4 Consent Orders) from the Land and Environment Court between the Applicant and the objector neighbour in October 2017. A Notice of Motion for Joinder filed 22 July 2022 seeking an order that Joanne Jefferies to be joined to these Class 1 proceedings was dismissed by Pepper J on 5 August 2022 and I have considered her decision in Jon Garling v Northern Beaches Council [2022] NSWLEC 102. I note too that there has been an extensive history of disputation between Garling and Jefferies which has occupied the time of this Court, the Supreme Court and the Local Court (Jon Garling v Northern Beaches Council [2022] NSWLEC 102 at [3]). I also note Pepper J's judgment of 5 August 2022 par [50]: "On any view, the Commissioner must have regard to the consent orders pursuant to s 39(4) of the LEC Act, which states that: 39 Powers of Court on appeals … (4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest." 1. The Class 4 Consent Orders fall within the ambit of s 39(4) of the LEC Act and at par [57] Pepper J goes on to say that: "It is accepted by Jeffries in her written submissions that the Class 4 consent orders do not bind the Council in its assessment and determination of a modification application. The submission is correct. The same reasoning applies to the Commissioner in the Class 1 appeal." 1. The prior Class 4 Consent Orders that apply to the Site have been considered pursuant to s 39(4) of the Land & Environment Court Act 1979. The Court has also considered the Class 4 Consent Orders as a circumstance of the case under s 4.15 of the EPA Act. I have considered and had regard to the Class 4 Consent Orders and to the submissions provided by objectors including the Objector Folder, and in that regard it is relevant that the Respondent filed a Bundle of Documents which includes a copy of written submissions dated 26 May 2021, 3 June 2021, 12 July 2021 and 13 July 2021. I go into more detail regarding the Class 4 Consent Orders below at par [17] and [42] - [44]. 2. The Modification Application MOD2021/0235 ('the Application') was lodged with Northern Beaches Council ('Council') on 5 May 2021 and sought the following modifications to the development as approved: 1. Deletion of condition 41 (imposed by Modification 2019/0253 on 23 July 2020); 2. Amendment of condition 15B (imposed by Modification 2019/0253 on 23 July 2020) to remove the requirement for frosted glazing to 2 north facing second floor ensuite windows. 3. Amendment of the approved plans in condition 2 to rely upon architectural plans DA-01(G), DA-04(G)-DA06(G), DA-08(G) to DA-10(G) and DA-16(G) prepared by Gartner Trovato Architects with the amendments shown clouded red and landscape plan LP01-D prepared by Selena Hannan. More specifically, the modifications seek: Use only of the following as built works: 1. The brushwood fence nominated on northern-eastern boundary (Architectural Plans); 2. Seating to the north-east of the pool (Architectural and Landscape Plans) 3. The stairs leading from the road reserve to the main dwelling (Architectural and Landscape Plans) 4. The stairs leading down from the pool area to the front garden (Architectural and Landscape Plans) 5. The pathway to the south-west of the pool area (Landscape Plan) 6. The planter box to the south-west of the pool area (Architectural and Landscape plans) 7. Seating to the south of the pool area (Landscape Plan) Prospective consent for the construction and use of: 1. a privacy screen proposed to be erected to a height of 535mm above the existing boundary wall as shown on plans DA09(G) and DA11(G). 1. Relevantly, the Applicant confirmed in the presence of the objectors on site that the deletion of condition of consent 41 was no longer sought. Consent condition 41 provides as follows: "Any and all security cameras installed on the subject site are to be installed such that they are not directed towards the neighbouring properties and are to be fitted/designed to ensure no surveillance of any adjoining or nearby private property is possible. Reason: To ensure suitable privacy to adjoining private land." 1. The effect of the Applicant no longer seeking its deletion is that condition 41 remains an enforceable condition of consent as determined by the Respondent Council as consent authority. This amendment to the Proposed Development by the Applicant satisfies the privacy concerns of one of the objector neighbours who gave evidence on site. 2. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and granting development consent to the development application subject to conditions. 3. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to modify a development consent. 4. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be the terms of s 4.55 of the EPA Act to modify a consent and various provisions in the Warringah Local Environmental Plan 2011 (WLEP) and a number of state planning policies which are detailed below in this judgment. 5. The parties explained how the jurisdictional prerequisites have been satisfied in an Agreed jurisdictional statement and I summarise the jurisdictional matters below including consideration of the Objector's Folder, namely the Class 4 Consent Orders. 6. The owner of the Site is Sarah Louise Genev. The Application was made by Jon Garling in accordance with the application form filed with the Class 1 Application on 21 March 2022. The Owners Consent declaration appears on the front page of the application form, Portal Application Number PAN-95062. 7. The Statement of Facts and Contentions filed by the Respondent Council on 22 July 2022 details that the modification application was notified for a period of 14 days from 13 May 2021 to 27 May 2021 in accordance with Northern Beaches Community Participation Plan. The Respondent Council received two (2) submissions as a result of this notification. The concerns raised in the submissions include the following: 1. Repeat application 2. Unauthorised works / breach of Court Orders and planning approvals 3. View loss from screen and landscaping 4. Privacy issues 5. Light spill 6. Brushwood fence is too high, and material is unacceptable 7. Errors and inconsistencies in documentation 1. As mentioned earlier, the Court was provided with an Objector Folder that Mr Tomasetti SC spoke to and which included the draft statement of contentions that Ms Jefferies intended to raise in the event that she was joined to the proceedings. The 'contentions' are addressed by the parties in the Agreed Jurisdictional Statement and which I adopt as follows: "59. When regard is had to the Consent Orders and the draft 'contentions' raised by the owners of 22 Lancaster Crescent the Court would observe: (a) The privacy screen is conditioned to be a freestanding structure to provide privacy to 24 Lancaster pool area and will not be constructed as part of the boundary fence. (b) The landscaping in the front yard in regions D and E will be conditioned to be maintained at a height no greater than RL 62; (c) The banksia species in region D is to be removed; (d) The use of the brushwood fence is not strictly in accordance with the Consent Orders but has been in existence for a long period where no enforcement action has been taken. The brushwood fence provides a reasonable privacy outcome for 24 Lancaster and does not impinge upon the views enjoyed by 22 Lancaster; (e) The additional height to the masonry fence was approved as part of an earlier construction certificate to ensure compliance with the Swimming Pools legislation and is not approved as part of this application; (f) The landscaping in the planter adjacent to the pool will be maintained at a height below the fence line; (g) The applicant did not seek leave to rely upon Landscape plan issue G and it does not form part of the consent. 60. The owners of 22 Lancaster also raised issues (not relating to the Consent Orders) in respect of frosting of windows and security cameras. Those contentions are dealt with as follows: (a) The frosting of the windows to the upper level of 24 Lancaster Crescent will be subject of conditions to ensure reasonable privacy to 22 Lancaster Crescent. (b) Condition 41, Security Cameras will not be amended and is not pressed by the Applicant. 1. I now turn to address the statutory jurisdictional prerequisites starting with s 4.55 of the EPA Act. The application seeks modification of development consent DA2016/0963 pursuant to s4.55(1A) of the Act, which provides: (1A) Modifications involving minimal environmental impact 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 proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), 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 any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. 1. I find that the modification is of minimal environmental impact for the following reasons: 1. the landscaping will be retained and maintained at a height below RL62 in the front yard; 2. the privacy screen will be erected at a height which substantially retains the views of 22 Lancaster Crescent to Narrabeen Lagoon and the ocean beach whilst providing privacy to 24 Lancaster Crescent; and 3. The window treatments to the upper level of 24 Lancaster Crescent will provide reasonable privacy to 22 Lancaster Crescent and is notably better than the original grant of approval which did not require the windows to be frosted. 1. The development consent was originally granted on 23 December 2016 (Tab 14, Respondent's Bundle). The development consent was later modified on 1 June 2017 (Tab 15, Respondent's Bundle) which approved excavation on the eastern boundary to create a lightwell to bedroom 3 on the ground floor. The development consent was further modified on 24 July 2020 (Tab 16, Respondent's Bundle) which made minor adjustments to the dwelling house, as identified on folio 326 (Tab 16) of the Respondent's Bundle. 2. The proposal is substantially the same development as the development for which the consent was originally granted (original consent – Tab 14, Respondent's Bundle) when a qualitative and quantitative assessment is undertaken. 3. The parties submit that there is well established authority which identifies how the "substantially the same" test is to be approached. In Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75, Pepper J helpfully summarised the relevant principles at [173]: [173] The applicable legal principles governing the exercise of the power contained in s 96(2)(a) [now s 4.55(2)] of the EPAA may be stated as follows: (1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); (2) the modification power is beneficial and facultative (Michael Standley at 440); (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); (7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52]). 1. It is well settled that "substantially" means essentially or materially or having the same essence. In context, the test in s 4.55(2) is that the consent authority must be satisfied that the development to which the consent as modified relates is substantially, essentially or materially, the same development or having the same essence as the development for which consent was originally granted. 2. The decision in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto) sets out the comparative task called for in s 4.55(2) of the EPA Act and its predecessor s 96(2). In Moto Bignold J confirmed as follows: 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted).. …………. 58. Qualitatively appreciated, that difference [in access] is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified. 1. I am satisfied for these reasons that the Proposed Development will be essentially and materially the same as the dwelling house development approved. The modifications do nothing to the layout of the dwelling and merely provides privacy measures for the occupants of both 22 and 24 Lancaster Crescent. 2. I next consider the Warringah Local Environmental Plan 2011 (WLEP) which applies to the Site. Demolition is permissible with consent pursuant to cl 2.7 of WLEP. 3. The Land is zoned R2 Low Density under WLEP. Dwelling houses are permissible with consent in the R2 zone. Clause 2.3 of the WLEP requires the consent authority to have regard to the objectives of the R2 zone. Those objectives are as follows: 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 ensure that low density residential environments are characterised by landscaped settings that are in harmony with the natural environment of Warringah. 1. The Application provides for a dwelling that will protect the privacy and needs of its occupants whilst maintaining the amenity of neighbouring landowners. 2. The Application does not propose a breach of any development standard within WLEP. 3. The Site is not mapped on the Council's Acid Sulphate Soils Maps (cl 6.1, WLEP). The Site is at approximately RL 55 to RL 63 Australian Height Datum and is not within 500m of another Acid Sulphate Soil class and the Application does not propose excavation therefore an Acid Sulphate Soil assessment is not needed. 4. The provisions of State Environmental Planning Policy 55 – Remediation of Land have been transferred into the State Environmental Planning Policy (Resilience and Hazards) 2021 (SEPP) and includes provisions relevant to Coastal Management. The subject site is not mapped on Council's Costal Hazards Map. The minor nature of the works proposed in the Application do not offend any of the coastal management provision of the SEPP. The subject Application is not a hazardous or offensive development (as defined). 5. The previous uses of the Site have always been residential and therefore unlikely to have been used for any potentially contaminating purposes. The Application is a modification application and not a development application. The Court is satisfied that the requirements of the SEPP are met. 6. As required by the State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004, a BASIX certificate is attached to the parent development consent for dwelling and in view of the minor scope of works requested in the Proposed Development an amended certificate is not required. 7. Finally, the parties have had regard to the relevant provisions of Warringah Development Control Plan 2012 (WDCP). In particular, the parties have had regard to the clauses noted in the Amended Statement of Facts and Contentions filed by the Respondent on 22 July 2022 (ASOFAC) and the particularised Contentions therein. The Court is satisfied that the Development can be approved having regard to the provisions of the WDCP and section 4.15(1)(a)(iii) of the EPA Act for the following reasons. 8. Relevantly, clauses D7 and D8 of the WDCP apply. 9. The objectives to control D7 are: * To allow for the reasonable sharing of views * To encourage innovative design solutions to improve the urban environment. * To ensure existing canopy trees have priority over views. 1. The proposal, subject to the conditions will meet requirement 1 which requires the reasonable sharing of views. 2. The objectives of control D8 are: * To ensure the siting and design of buildings provides a high level of visual and acoustic privacy for occupants and neighbours * To encourage innovative design solutions to improve the urban environment * To provide personal and property security for occupants and visitors. 1. The orientation of the living rooms of 22 Lancaster Crescent overlook the pool and rumpus area of 24 Lancaster Crescent. To balance those views with the privacy of 24 Lancaster Crescent, the louvered screen will achieve a reasonable balance between views and privacy. The frosting of the bedroom windows of 24 Lancaster Crescent as per the conditions will achieve a good privacy outcome for 22 Lancaster Crescent. There is no need to frost the two (2) northern ensuite windows as there is no direct overlooking from those windows having regard to the bathroom vanity keeping an observer from the edge of the window together with the oblique angle to 22 Lancaster Crescent. 2. In relation to the remaining matters in section 4.15(1) of the EPA Act, the parties agree that the Application can be approved taking into consideration the matters in section 4.15(1)(b) – (e) of the EPA Act. 3. The parties agree that the submissions of objectors are a relevant consideration under section 4.15(1)(d) of the EPA Act. The parties agree that the submissions of objectors have been taken into account and the Proposed Development can be approved. In considering the Application and, in deciding whether to enter into a s 34 Agreement which will give rise to the grant of a development consent, the parties have had regard to the public interest, as required by s 4.15(1)(e) of the EPA Act and s 39(4) of the LEC Act. 4. The application before the Court relates to the Class 4 Consent Orders made in respect of Regions C1 and C2 referred in the Class 4 Consent Orders. 5. The parties have agreed that the proposed privacy screen should be conditioned to be a free-standing structure which is not part of the boundary fence between 22 and 24 Lancaster Crescent. The parties also agree that the height of the boundary fence is to be conditioned to a height that provides a reasonable compromise between the views enjoyed by 22 Lancaster Crescent and the privacy to the pool area of 24 Lancaster Crescent. The sketch plan proposed to be included in the conditions of consent details the size of the louvre blades and the angle to which they are to be fixed. 6. The Court, the experts and the parties had the benefit of observing the views from the living room, dining room and kitchen of 22 Lancaster Crescent from a sitting and standing position. The imposition of a condition requiring a lowering of the privacy screen is an acceptable outcome that balances the interests of 22 and 24 Lancaster Crescent. 7. I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties in the terms as I have set out above. 8. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. Orders: 1. The Court orders: 1. The appeal is upheld; 2. Development consent no DA2016/0963 is modified in the terms in Annexure A. 3. Development consent no DA2016/0963 as modified by the Court is Annexure B. ………………………. E Espinosa Commissioner of the Court Annexure A (202467, pdf) Annexure B (369671, pdf) ********** 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: 20 September 2022