Land and Environment Court New South Wales Medium Neutral Citation: Skyton Developments No. 2 Pty Ltd v Georges River Council [2023] NSWLEC 1698 Hearing dates: 19 and 20 July 2023 Date of orders: 21 November 2023 Decision date: 21 November 2023 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court directs that: (1) By 8 December 2023 the parties are to file conditions of consent that reflect my findings at [87] using the templates for Annexures A and B. The Court orders that: (1) The matter is listed for Online Court at 12pm, 8 December 2023. Catchwords: DEVELOPMENT APPEAL – modification application – not substantially the same – height of building – merit assessment – urban design – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 4.56, 8.9 Environmental Planning and Assessment Regulation 2021, s 113 Georges River Local Environmental Plan 2021cll 4.3, 4.4, 4.6, 5.10, 6.7, 6.10, 6.11, 6.13 Kogarah Local Environmental Plan 2012 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 Arrage v Inner West Council [2019] NSWLEC 85 Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LEGRA 114; [2022] NSWCA 227 GCK Investments Pty Ltd v Georges River Council [2018] NSWLEC 1343 HPG Mosman Projects Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1243 Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 Sahade v Inner West Council [2023] NSWLEC 1139 Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 Texts Cited: Department of Planning and Environment, Apartment Design Guide, July 2015 Georges Rivers Development Control Plan 2021 Category: Principal judgment Parties: Skyton Developments No. 2 Pty Ltd ACN 642787148 (Applicant) Georges River Council (Respondent) Representation: Counsel: M Staunton (Applicant) L Sims (Respondent) Solicitors: Storey & Gough Lawyers (Applicant) Georges River Council (Respondent) File Number(s): 2022/252723 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 refusal of Modification Application MOD2022/0052 seeking to modify DA/183/2016 for demolition of existing buildings and construction of a ten (10) storey mixed use development consisting of ground level tenancy and 52 residential apartments (the Consent) by the following modifications: 1. minor modifications to address structural engineering requirements; 2. a reduction from 52 to 45 residential apartments to comply with the Apartment Design Guide (ADG); and 3. an increase in the total height from 10 storeys to 12 storeys and increase in parking in basement, 4. (the Proposed Modification) at 45 Princes Highway and 99 Regent Street, Kogarah (aka 41 - 47 Princes Highway, Kogarah) legally described as Lots 125, 126 and 127 in DP 1397 and Lot 128 in DP 179777 (the Site). 1. This case is about a Proposed Modification which seeks to increase the height of building (HOB) to a height which is greater than the 33m HOB development standard in circumstances were the approved HOB of the Consent complied with that standard. 2. The Consent was originally granted by the Land and Environment Court pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act) in the decision of Commissioner Gray of GCK Investments Pty Ltd v Georges River Council [2018] NSWLEC 1343 and the Proposed Modification application is made pursuant to s 4.56 of the EPA Act. 3. The Court arranged a conciliation conference under s 34(1) of the LEC Act between the parties, which was held on 22 February 2023. Acting Commissioner Pullinger presided over the conciliation conference. The parties were unable to reach agreement and the conciliation conference was terminated on the same date. 4. The Applicant was granted leave to rely on amending documents on 4 April 2023 resulting in a reduction in the HOB now proposed compared with the modification application as originally lodged with the Respondent council. 5. On the second day of the hearing, the Applicant sought leave to further amend the Proposed Modification arising from both the Joint Expert Report (JER) (Ex 4) and from the evidence of the experts during cross examination. The Court notes that pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021 the Respondent Council as consent authority agrees to the Applicant amending the Proposed Modification by relying on the following documents which were filed in court on 20 July 2023 with the Extract of Amended Plans (Ex L) and updated BASIX Certificate filed on 27 July 2023: 1. List of Amendments Schedule of Amendments and Architectural drawings Sheets 00 to 76 up to Rev J (Ex C) further amended in accordance with Extract of Amended Plans Drawing No 00, 09, 10, 11, 12, 13, 19, 23, 24, 31, 32, 36, 48, Rev K (Ex L) 2. BASIX Certificate dated 25 July 2023 (Ex D) 1. The HOB for the Proposed Modification before the Court is now proposed to increase from the approved 10 storeys to 11 storeys with 48 units described as follows: "Demolition of existing buildings and construction of a 11 storey building used for shop top housing with ground floor commercial space (205m2) and 48 units (6 x studio, 8 x one bedroom, 20 x two bedroom and 14 x three bedroom) and three levels of basement car parking with 61 car spaces plus a EV charging space" (Proposed/Draft Conditions of Consent" (Ex 3)). 1. The Respondent's case is set out in the Amended Statement of Facts and Contentions (ASOFAC) filed 24 May 2023 (Ex 1) and the following contentions remain unresolved for determination by the Court: 1. Not substantially the same (contention 1) – jurisdictional prerequisite: 1. The Amended Application should be refused as it fails to meet the jurisdictional requirement of s 4.56 of the EPA Act as the consent authority cannot be satisfied that the resulting development will not be substantially the same as the development originally approved under the Consent. The proposal differs from that approved in quantitative and qualitative ways. 2. The original proposal exceeded the maximum height under the then Kogarah Local Environmental Plan 2012 (KLEP); but following amendments, was approved by the Court, without height or Floor Space Ratio (FSR) exceedances. Given that the approved development was negotiated though the Court and agreed at the time, the extent and impacts of the changes now proposed undermines public confidence in the development assessment process and is not in the public interest. 1. In relation to merit contentions 2, 4 and 6(d), s 4.56(1A) of the EPA Act requires the Court to 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 merit contentions are as follows: 1. The HOB exceedance is excessive and non-compliant with the development standard and is not justified (contention 2). 2. Unsatisfactory bulk, scale and landscape outcome: The design quality of the development as proposed to be amended, when evaluated in accordance with the Design Quality Principles contained within State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (SEPP 65) and with cl 6.10 Design Excellence of Georges River Local Environmental Plan 2021 (GRLEP) is unsatisfactory. New unacceptable impacts on adjoining properties will result (contention 4). 3. Amendments to apartments result in poor amenity limited to particular (d) relating to solar access and design criteria of Objective 4A-1 requiring a minimum of 2 hours of winter sun (contention 6). 1. The modification Application was lodged in April 2022 and is therefore subject to the provisions of the GRLEP which came into force on 8 October 2021. The Site is zoned B2 Local Centre under the GRLEP (Ex 2, Tab 1, folio 112). 2. The hearing commenced on Site and, in that regard, it is relevant to note that the original Modification Application was publicly notified from 21 April 2022 for 14 days. Twenty-four submissions objecting to the Application were received. These were from owners of units at 93 Regent Street (building known as "Kogarah Central") and 79 Regent Street Kogarah and from the Parents and Citizens Committee of the adjoining Kogarah Public School. The Amended Modification Application was notified from 20 April 2023 to 5 May 2023 and as at 8 May 2023 5 submissions in objection were received, included with the Respondent's Bundle of Documents (Tab 14, Ex 2). Objectors present at the hearing on site gave evidence of their concerns on the school grounds regarding the following: 1. Screens on 3 apartments on the southwest corner of the building had been approved to prevent overlooking and engagement between residents and the school children whereas these no longer appear in the Proposed Modification plans. The Applicant agrees to reinstate the screens as approved in DA110 Issue LEC-C South Elevation (Ex B, Tab 16) and a condition of consent (1D)(e)(i) is included to this effect (Ex 3). 2. Increased solar impact of the Proposed Modification on the school – Applicant relies on Drawing 44 Rev H. I come back to overshadowing of the Public School at [29] and [54] below in Contention 4. 3. Construction noise and seeking respite from the noise during the school day. I note that the Draft/proposed conditions of consent 1D (h) and (i) requires a Constructions Management Plan and Construction Traffic Management Plan (Ex 3). 1. The Court then proceeded to inspect views from Level 11 rooftop and Level 10 corridor view of Kogarah Central, 93 Regent Street and was shown relevant images from the View Impact Assessment (Ex B, Tab 2) and Fig 8 on p 57 of the JER (Ex 4). Following this, the Court undertook an inspection of the locality by walking around the block past St Paul's Church and Hall, up the laneway and past the Kogarah Public School and returned to the corner of the Site and crossed the road to the other side of the Princes Highway looking back at the Site and the locality while observations were made of the character. 2. The parties rely on the following Joint Expert Reports: 1. JER filed 5 July 2023 prepared by Karla Castellanos, Urban Design and Jonathon Wood, Town Planning for the Applicant and Alan Cadogan, Urban Design and Heather Warton, Town Planning for the Respondent. (Ex 4); 2. Supplementary JER Town Planning dated 20 July 2023 (Ex 5) regarding the calculation of Gross Floor Area (GFA) and FSR; and 3. Supplementary JER Urban Design dated 20 July 2023 (Ex 6) to address 1. waste and bulkhead for U802 and U803, U902 and U903 (similar to plan 75); 2. eye of sun diagrams in the context of contention 7(g) as to further information assessment against ADG for solar access comparing the approved development and the Proposed Modification; and 3. Privacy screen at southwest end of the building (units 101, 201 and 301) and solution. 1. All four experts gave oral evidence during contemporaneous cross examination which was of assistance to the Court. 2. I will consider the threshold or jurisdictional prerequisite contention of whether the Proposed Modification is substantially the same as the Consent (s 4.56(1)(a), EPA Act), as particularised in contention 1 of the ASOFAC and then I will consider the merits of the remaining contentions giving my reasons why I have determined that the Proposed Modification should be approved. Is the Proposed Modification substantially the same as the Consent? (Contention 1) 1. The Respondent contends that the Proposed Modification is not substantially the same as the development originally approved in the following physical ways: 1. The HOB has been increased at the most prominent location on the Site; 2. The building form including some setbacks has changed; 3. The GFA of the building is increased; 4. There is an additional floor; 5. The number of units, the unit mix, and the unit layouts and sizes have changed on every floor; 6. The basement car parking spaces have increased and the car parking layout has changed; 7. The location of the on-site detention (OSD) tank has changed, and hence the stormwater system has also changed. 1. This is a threshold or jurisdictional prerequisite required to be satisfied pursuant to s 4.56(1)(a) of the EPA Act which I reproduce below as follows: 4.56 Modification by consent authorities of consents granted by the Court (cf previous s 96AA) (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development 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 the consent was originally granted and before that consent as originally granted was modified (if at all), and … 1. The test to be applied to satisfy this jurisdictional prerequisite is set out in the terms of the statutory provision. Preston CJ in the decision of Arrage v Inner West Council [2019] NSWLEC 85 at [18], [27] and [28] explains that: "[18] … The "test" the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act. Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31]." … "[27] This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. [28] That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]." 1. In the more recent Court of Appeal decision of Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LEGRA 114; [2022] NSWCA 227 (Feldkirchen), Preston CJ confirmed the test at par [112] saying as follows: "The comparison required by s 4.55(2)(a) is simply between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16] and Arrage v Inner West Council [2019] NSWLEC 85 at [24]. Case law on the precondition, both in earlier statutory provisions, such as s 102(1), and the current statutory provision of s 4.55(2), has suggested ways in which this comparison between the two developments might beneficially be undertaken. This includes identifying and comparing the "material and essential features" of the two developments: Moto Projects (No 2) Pty Ltd v North Sydney Council at [55], [56] and [58] and Arrage v Inner West Council at [26]. These suggested ways of undertaking the comparison between the two developments, however, do not displace the statutory test in s 4.55(2)(a) or demand that the required comparison be undertaken in those ways: Arrage v Inner West Council at [27], [28]." 1. The language of the statutory provision in s 4.55(2)(a) is otherwise identical to the language of the statutory provision in s 4.56(1)(a) of the EPA. 2. The Applicant provides comparison drawings of the Consent and the Proposed Modification in DWG 34 to DWG 43 Rev I (Ex C). 3. A building with 10 storeys, complying with the 33m HOB development standard pursuant to cl 4.3 of the GRLEP was approved by the Consent. Using the levels on the approved Survey, the HOB comparison is set out in the table below: Approved: 10 storeys Proposed; 11 storeys Lift over run RL48.37m, being a building height 30.99m (ground level existing (GLE) being RL17.38m) RL52.07m, being a building height of 34.69m Parapet on the corner of Regent Street and Princes Highway RL 48.32m, being a building height of 32.58m (GLE being RL15.74m) RL 51.27m, being a building height of 35.53m 1. The Applicant submits correctly that the test is not a comparison of a compliant consent and a non-compliant modification, that is, that a compliance comparison is not determinative of whether 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. 2. I accept that there is no change in use and that the area has not physically or factually changed (Surveyor's report at Ex E). The experts agree that the change to the location of the OSD is not sufficient to warrant the refusal of the Proposed Modification. 3. I also accept that the Proposed Modification does not propose a full additional storey, rather the additional height of habitable area consists of 2 units appropriately located on the corner of the building resulting in an appropriate height transition from the corner to the adjacent buildings. As there is no increase in floor space ratio, this can be seen as a redistribution of habitable space to the corner. 4. The Applicant submits that s 4.56 of the EPA Act is a beneficial and facultative provision which should be given the broadest interpretation. The Applicant submits that the proposed refinements to the floor layouts are not a radical transformation, the communal open space is in the same location. The Applicant relies on the evidence of Mr Wood in the JER (Ex 4) at pars 87 to 104, in particular at par 88 where the Applicant submits Mr Woods identifies the essence of the development as follows: "88. This is not a scheme that is fundamentally different to what was previously approved given the footprint of the building is not fundamentally altered, the setbacks of the building form are fundamentally unaltered, and the quantum and proportion of the commercial and residential mix is maintained as well as the extent of parking largely being retained as approved. The driveway access point remains as approved, circulation arrangements (pedestrian and vehicular) are retained, lift locations, fire egress arrangements etc. The key change to the build form is the removal of 1 unit at L9 and the addition of 2 units at L10 to provide an improved urban design response with a taller element on the corner that transitions to a lower element at the interface with the properties to the west and south." 1. The Respondent's experts seem to accept that the numeric changes are minor and focus on qualitative changes, the assessment of which are better dealt with in the merit considerations as articulated in the contentions 2, 4 and 6(d) below in this judgment. The Applicant submits that there are no new impacts in nature, but rather some approved impacts of the Consent are reduced and others increased. 2. I accept the evidence of Mr Wood and find that whilst numerous in a quantitative sense, the amendments do not constitute a radical transformation of the proposal (par 104, JER, Ex 4) or put another way, do not change the essence of the development and I form this opinion based on the qualitative assessment of the impacts of the proposed changes. I go into more detail regarding the qualitative impacts of overshadowing, privacy, view impact and solar access in the merit contentions below. 3. The Respondent submits that 'radical transformation' is not the test but rather the decision of Feldkirchen and referred the Court to my decision in the matter of Sahade v Inner West Council [2023] NSWLEC 1139 at [34] where I had summarised the legal principles. I apply the test in accordance with the terms of s 4.56 of the EPA as confirmed by Preston CJ in Feldkirchen. 4. The Respondent considered the comparison exercised undertaken by Mr Wood in the JER at par 88 noting what is unchanged and at par 91 lists what the key changes are. The Respondent acknowledges that the changes to the GFA are essentially the same and submits that the HOB is the most significant change and that the impact of the increase in height is sufficient to conclude that the Proposed Modification is not substantially the same as the development for which consent was originally granted. I accept the evidence of Mr Cardogan in JER on p 5 (Ex 4) that the height change is incremental and the overshadowing impacts over the school are minor. I have considered Drawing 44 Rev J (Ex C) which reveals that the changes to overshadowing at 10am on 21 June are sufficiently minor in order for me to be satisfied as to the jurisdictional prerequisite, that the Proposed Modification is substantially the same as the Consent. The other qualitative, or environmental, impact of the proposed change to the HOB is the impact on views which is considered in further detail in contention 2 which deals with HOB from a merit assessment perspective and at contention 4 where I summarise the View impact assessment (Ex B, Tab 2) at par [57]. Three Merit Contentions – contentions 2, 4 and 6(d) 1. There are three merit contentions requiring the Court's determination. 2. First is the merit assessment of the HOB exceedance of the 33m development standard (contention 2). 3. Secondly, contention 4 contends that the bulk and scale is unsatisfactory because the design quality of the development as proposed to be amended, when evaluated in accordance with the Design Quality Principles contained within SEPP 65 and with cl 6.10 of the GRLEP regarding Design Excellence, is unsatisfactory and new unacceptable impacts will result from the Proposed Modification. 4. The final merit contention is particularised at (d) of contention 6 and relates to the ADG's design criteria of 2 hours midwinter solar access for 70% of apartments. The Respondent contends that the performance of the development is not improved by the Proposed Modification. As at the conclusion of the proceedings, this is no longer accurate because the Rev K amended plans (Ex L) address solar impact. The Consent provides 21 out of 52 units or 40.3% of the units achieving the 2 hours of midwinter sun whereas the Proposed Modification provides 20 out of 48 units or 41.66% of the units achieving the 2 hours of midwinter sun (Architectural Drawings Coversheet filed 27 July 2023). Height of building (contention 2) 1. Starting with contention 2, the maximum permissible height of building (HOB) for development on the Site is 33m pursuant to cl 4.3 of the GRLEP, as shown on the Height of Building Map (HOB10). The proposal as modified will exceed the maximum building height by up to 2.53m along Regent Street and which includes habitable floor space in both of the units proposed on that storey. Mr Woods describes it as follows: "An increase in the height of the building from 31.75 metres (along Regent Street) to 35.5m – noting that this has been offset through 'cutting out' a part of the building volume on the southern side of the building at Level 9 onwards and an adoption of 2 units volume per level at L9 and L10. The intent of this is to get a better design and response to the corner element and reduced bulk as observed at the upper level." (p 21, JER, Ex 4) 1. The Proposed Modification has elements above the 33m HOB development standard and elements below as can be readily seen in Fig 1 and Fig 2. Fig 1: HOB as depicted in DWG 18 Rev H Streetscape Elevations (Ex C) Fig 2: HOB as depicted in DWG 24 Rev K Site Sections (Ex C) 1. I note that the ASOFAC provides that pursuant to cl 6.7 of the GRLEP regarding Airspace operations, the proposed HOB exceedance is acceptable to Sydney Airport/CASA and Flysafe Airspace Protection as evidenced in the letter dated 11 October 2023 (Tab 13, Ex 2). 2. The Respondent contends that the HOB exceedance is excessive and non-compliant with the development standard and is not justified. Although not strictly required, the Statement of Environmental Effects (SEE) dated 22 March 2023 (Ex B, Tab 3) attaches at Annexure 1 a "Height Variation Discussion" which discusses and assesses the merits of the height breach against the general framework of cl 4.6 of the GRLEP. 3. The Respondent submits that it is significant that there are habitable rooms above 33m and refers to DWG 24. The Respondent invites the Court to consider the register of cl 4.6 written requests which have been approved or upheld and the comparison between them noting that only one includes habitable rooms above the maximum HOB development standard and the others involve lift overruns and architectural roof features (JER, pars 109 and 110). The task for the court is to assess this matter on its own merits. 4. The Respondent is also concerned that it is not in the public interest to approve the Proposed Modification because the process of assessing a modification application is not constrained by the tough test of cl 4.6 of the GRLEP and that a precedent would be set if the Proposed Modification is approved because the Consent was compliant with the HOB development standard whereas the Applicant now seeks to contravene that HOB development standard by way of a modification application. The Respondent rightly acknowledges that the Applicant's SEE includes a discussion of the terms of cl 4.6 of the GRLEP (Ex B, Tab 3). 5. The Court is to undertake the assessment of the modification application pursuant to s 4.56 of the EPA Act and the public interest is served by the Court applying the terms of that section and not importing other provisions. 6. The Applicant submits that the only provision in the GRLEP that mandates compliance with objectives is cl 4.6 of the GRLEP whereas s 4.56 of the EPA Act does not require consistency but rather that they be taken into consideration. I have taken into consideration the three objectives of the HOB development standard in cl 4.3 of the GRLEP which are as follows: … (a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of the locality, (b) to minimise the impact of overshadowing, visual impact, disruption of views and loss of privacy on adjoining properties and open space areas, (c) to ensure an appropriate height transition between new buildings and— (i) adjoining land uses, or (ii) heritage items, heritage conservation areas or Aboriginal places of heritage significance. 1. The SEE provides at p 32 (Ex B, Tab 3) that the proposed HOB is considered to be appropriate for the following reasons: "The smaller footprint of the tower accommodation only two (2) units per floor instead of three and five units per floor; The redistribution of the units from 52 units approved to 45 units proposed will allow for less units per floor level with an increased floor area in each unit, which complies with the ADG recommendations; The heights of the floor levels are increased to allow for the structural requirements when floor plates are indented in the upper levels and transfer slabs and beams are necessary to accommodate the loads generated; There has been no allowance for the structural engineering depth required for stepdown and transfer beams required for these indentations; There are Urban Design benefits with the amendments in providing a clear 'corner marker' building at a prominent corner location." 1. I am satisfied that the Proposed Modification remains consistent with the objectives of the HOB development standard in cl 4.3 of the GRLEP. I have considered the SEE at p 35 and I accept the evidence of the experts including that of Ms Warton, Town Planner for the Respondent being that the Proposed Modification is compatible with the height bulk and scale of the locality, being the visual catchment. 2. I consider that the Proposed Modification is compatible with height, bulk and scale of the existing and desired future character of the locality given the strong interface to a prominent intersection for which there is precedent in the locality (79-87 Princes Highway) and that notwithstanding the increase in HOB, the foot print is reduced and the FSR development standard (cl 4.4 of the GRLEP) is complied with. In considering the desired future character I have had regard to the decision of Woollahra Municipal Council v SJD DB2 Pty Limited [2020] NSWLEC 115 at [53] and [54] which considers compatibility as follows: "[53] The issue separating the parties is whether these provisions of WLEP exhaustively define and fix the desired future character of these neighbourhoods and areas of Woollahra. The Council's originalist construction gives the term "desired future character" the meaning that it was understood to have at the time WLEP was made. That meaning is derived from the provisions of WLEP as made that define and fix the desired future character. Once so defined and fixed by WLEP, the desired future character does not change. The only means of changing the desired future character is to amend the provisions of WLEP that define and fix the desired future character. SJD accepted that the provisions of WLEP can shape the desired future character but so too can external factors such as the developments that are approved and constructed in the neighbourhood or area. These developments change the built form and urban character that exist at any particular time. The desired future character for a neighbourhood or area can evolve over time, responding not only to the provisions of WLEP but also to developments carried out in accordance with development consents granted under WLEP and the EPA Act. [54] I consider SJD's construction is correct. The first reason flows from the fact that WLEP has not defined the meaning of the term "desired future character" that is used in various provisions of WLEP. The drafter of WLEP has, therefore, not confined the meaning of the term "desired future character" by reference to the particular provisions in WLEP, including those concerning the zoning, the permitted and prohibited development, and the development standards, that shape the urban character and built form of neighbourhoods or areas in Woollahra. In circumstances where the term "desired future character" is undefined and unconfined in WLEP, the matters that may be taken into account in evaluating what is the desired future character of a particular neighbourhood or area at any point in time will similarly be unconfined, except insofar as there may be found in the subject matter, scope and purpose of WLEP some implied limitation on the matters that may legitimately be considered. There is no limitation found in the subject matter, scope and purpose of WLEP which would preclude consideration of developments that have been approved and constructed in the neighbourhood or area." 1. I am satisfied that the impact of overshadowing, visual impact, disruption of view and loss of privacy is minimised because the HOB exceedance is located in the north eastern corner of the Site, adjacent to the intersection of the 2 street frontages and therefore significantly separated from adjoining properties. 2. In relation to privacy, Mr Cardogan agrees regarding the reinstatement of the screens and wind report. The edge of the building is already 1m above ground and I conclude that there are no additional unacceptable impacts. I have also taken into account the Visual Impact Assessment by Audax Urban dated 21 March 2023 (Tab 2 of Ex B) which supports my finding. 3. I come back to impacts of the Proposed Modification when I address contention 4 below. 4. Finally, the Proposed Modification allows for appropriate height transition to adjoining land uses by the siting of the HOB exceedance to the north eastern corner. I have had regard to the evidence of Ms Castellanos and her Appendices D and D1 to the JER (Ex 4). 5. For these reasons, I conclude that the objectives of cl 4.3 HOB development standard in the GRLEP are achieved by the Proposed Modification notwithstanding the exceedance of the maximum HOB development standard. Unsatisfactory bulk and scale and landscape outcome – new unacceptable impacts (contention 4) 1. The second merit contention has been largely addressed above in response to the HOB exceedance contention 2. 2. Firstly, the Respondent is satisfied that the Applicant has provided a Design Verification Statement (Ex G) but is not satisfied with the design outcome in accordance with SEPP 65 and cl 6.10 Design Excellence of GRLEP. 3. The Applicant submits that the former KLEP, which applied to the Consent, did not have an equivalent design excellence cl 6.10 and that the new cl 6.10 of the GRLEP did not apply to the development as approved. I accept that cl 6.10 refers to development consent for new buildings or development consent for alternations and addition to buildings whereas these proceedings relate to a modification application and therefore the terms of cl 6.10 of the GRLEP do not apply and the court, as consent authority, is not required to consider the design excellence matters as listed in subcl (5). Notwithstanding and in any event, the Applicant submits that the Proposed Modification improves on the Consent of a building on a marked corner by stepping down from the corner, increasing the ground floor to 4 m and provides better solar access than the approved development. I have considered the evidence of the experts and I accept the submission of the Applicant to the extent that it is relevant or necessary for the determination of this matter. 4. Secondly, the new impacts referred to by the Respondent are limited to the overshadowing of the adjacent school and the disruption of views from the adjacent residential flat building. I accept the Applicant's submission that they are not new impacts in their nature, but that these impacts in some instances are reduced and in other instances are increased. Ms Warton concedes that there are not any unacceptable impacts resulting from the Proposed Modification and Ms Castellanos is of the opinion that there are positive benefits resulting from the changes. 5. The overshadowing of the school is an impact which is approved in the Consent and the Applicant has prepared shadow diagrams showing the changes to that overshadowing as a result of the Proposed Modification, one of which I reproduce below at Fig 3. I have found above that these changes are sufficiently minor to satisfy the test of whether the Proposed Modification is substantially the same as the Consent. Fig 3 Shadow Diagrams 10 am 21st June DWG 44 Rev J (Ex C) 1. I have carefully considered the evidence and I conclude that when all play areas of the school are considered together with the overshadowing impacts of existing buildings and existing trees, the increased overshadowing by the Proposed Modification is a minor impact and has been minimised. I accept that the shadow diagrams show some increase and some reduction of overshadowing over the adjacent school and that the impact on the areas where the overshadowing is increased by the Proposed Modification is minimal because the increase occurs within the area of shadow cast by the existing trees as can be seen in Fig 7 on p 56 of the JER (Ex 4). 2. I now move on to consider the impact of the Proposed Modification on the views from the adjoining property. The Applicant relies on a View impact assessment (Ex B, Tab 2) and for the purpose of the Proposed Modification the relevant test to satisfy is to minimise view impacts. 3. Mr Cardogan agrees that the view analysis accurately portrays the impact on views arising out of the Proposed Modification (JER, para 189, Ex 4). Mr Cardogan however does not agree with the view analysis regarding the reasonableness of the impact. The Court had the benefit of having been at the adjoining property and together with the view impact assessment (Ex B, Tab 2). I summarise the analysis below as follows: 1. The view from the roof of the adjoining property depicted at Fig 24 shows that the proposed HOB will be below the waterline, that is, the view of the water from the rooftop will be retained. 2. At Fig 19 and 20, the North and East view from Unit 1021 shows that the view is retained to the north and to the south and also there's the Northern view which is not impacted at all as per Fig 16. 3. The view from Unit 624 is improved to the extent shown in Fig 11. 4. The view depicted in Fig 21 is a view from the corridor of Level 10 and is not from Unit 1005 which benefits from a long balcony. 5. Unit 922 will benefit from an improvement to the view as shown in Fig 14. 6. The views of city includes the identifiable Centrepoint or Westfield tower. 7. The heads of Botany Bay can be identified in Fig 20 and Fig 11. 8. The views from Unit 1021 living area to the city are depicted in the JER, p 57 Fig 8 and will not be impacted by the Consent or the Proposed Modification. 1. I conclude that the impact of the Proposed Modification on views is minimised and on balance is reasonable. Other considerations 1. Clause 6.13 of the GRLEP relates to development in Local Centre zone and subcl (3) is complied with insofar as there is no residential component proposed on ground level facing the street. 2. The Applicant has provided a Heritage Impact Assessment (Ex H) regarding St Paul's Church and the Hall which are heritage items to enable the considerations required by cl 5.10 of the GRLEP. Accordingly, the contention as to insufficient information is resolved and the Respondent submits that there are no merit issues arising regarding heritage. 3. The Applicant filed an updated BASIX Certificate dated 25 July 2023 (Ex D) on 27 July 2023 and cl 6.11 of the GRLEP regarding environmental sustainability is satisfied. Draft/Proposed Conditions of Consent (Ex 3): 1. The Respondent filed Draft/Proposed Conditions of Consent on 27 July 2023 (Ex 3). There are a number of conditions that are not agreed between the parties, namely condition (1A)(b) relating to gross floor area (GFA) calculation, condition (1D)(b) relating to materials and finishes and condition 5F regarding above ground power poles. I will deal with them in turn. 2. Firstly, proposed consent condition (1A)(b) relates to GFA and is sought to respond to an agreement between the Town Planning experts that the calculations of GFA and FSR in the Consent are not accurate (JER, par 128 to 130). The Court is further assisted by the Supplementary JER Town Planning dated 20 July 2023 (Ex 5) regarding the calculation of GFA and FSR. The parties have been unable to agree on the wording of the proposed condition and have provided 3 alternate options being: 1. Exclusion of all breezeways resulting in FSR numerical compliance; or 2. Inclusion of some of the breezeways, namely those on levels 1 to 4 as shown in Drawing 31 Rev K resulting in an FSR of 4.07:1; or 3. Inclusion of all of the breezeways resulting in an FSR of 4.299:1. 1. The experts agree that the Consent approved plans incorrectly show GFA at 4,230m2 whereas the correct GFA is 4,337m2 which equates to an FSR of 4.07:1 on the 1,065m2 Site area, noting that the Site area was incorrectly defined at 1,060m2 in the Consent and on that incorrect measurement the FSR would have been calculated at 4.09:1. 2. The experts further agree that in relation to Proposed Modification Supplementary JER Town Planning at par 11: "11. We agree in relation to the following components of the MOD plans (as amended to exclude the northern wintergardens and 1 surplus car space) and the GFA and FSR. a) The plans show 4244.4m2 but this is not correct as areas at the ground floor (bin storage and some areas of horizontal circulation) are incorrectly excluded. In addition the winter gardens are understated and we calculate the wintergarden to be 54m2 (increase in 4.6m2 ). b) HW and JW now agree that the Ground Floor bin store area is 37.3m2 and the horizontal circulation at the Ground Floor is 48m2 and the area of the wintergarden must be increased by 4.6m2 bringing the corrected GFA to 4,334.3m2 . c) This equates to an FSR of 4.07:1 on the 1,065m2 site area; or when using the site area as accepted when approved, FSR 4.09:1 d) This is a minor reduction in GFA on the MOD plans as compared to the as approved plans - by 2.7m2 . e) This assumes no change to the way in which breezeways are calculated - which remains an area of disagreement between HW and JW and we comment on this further in this report." 1. The area of disagreement between the experts is the way in which the breezeways are calculated and "It is noted that in the calculations above, some breezeways have been included as shown on the GFA diagrams for the approved and MOD plans" as shown in Drawing 31 Rev K on Levels 1 to 4 (Supplementary JER Town Planning, par 12). 2. Ms Warton and Mr Wood disagree on whether the breezeway areas should be included but agree on the areas in terms of their size as set out in tables and calculations at pars 16 – 18 of the Supplementary JER Town Planning. 3. Mr Wood's evidence is that the breezeways should not be included and relies on his reason in the JER, whereas Ms Warton takes the view that the breezeways should be included in GFA "as shown on the approved GFA diagrams Drawing DA113 Rev LEC-C and on the GFA diagrams shown in Drawing 31 Rev H as well as including the additional areas, not shown as GFA" (Supplementary JER Town Planning, par 14). 4. The Applicant's Extract of Amended Plans, Rev K (Ex L) updates Drawing 31 and the draft condition options all refer to the Rev K version of Drawing 31 and to the Supplementary JER Town Planning however, each option provides for different numbers. 5. None of the options for this proposed condition have any impact on my determination to approve the Proposed Modification and it appears that the purpose of the proposed condition is to rectify an error in the Consent and set the basis for calculation of GFA, and resultant FSR, in the amended conditions. 6. Breezeway is not defined in the GRLEP and neither party made any substantial submission to assist the Court. I have reviewed the evidence of the experts. In the JER at par 147 Ms Warton sets out her opinions and at par 169 Mr Woods give his opinion evidence as to the treatment of breezeways and they each rely on previous 'competing' decisions by Commissioners as follows: 1. Decision of O'Niell C relied on by Mr Wood: HPG Mosman Projects Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1243 (HPG Mosman) 2. Decision on Morris C relied on by Ms Warton: Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 (Landmark v Sutherland) 1. In Landmark v Sutherland at [27] Morris C notes that "the discrepancy arises from the applicant's exclusion of an area within the overall building envelope which it describes as a 'Breezeway' enclosed by walls of apartments to each side but by a balustrade 1 metre high at each end". Morris C concluded at [60] and [61] that the breezeways in that matter, which were enclosed by walls or doors of apartment or of various ancillary spaces as well as by openings leading into corridors, at 14.9 m long and 2 m wide opening at each end with a balustrade of 1m at each end, were 'within the internal face of the external walls of the building' and 'the fact that 2m wide areas around the perimeter of the building are not wholly enclosed does not alter the location of the building's external walls' and as such the areas of the breezeway/corridor were included as GFA. In that case Morris C found the space to function as and to be internal floor space. 2. In HPG Mosman, the exclusion of common corridors of Levels 1 and 2 of that development from the GFA was in contest. Those corridors were described at being long, each with an opening on one side less than half the length of the corridor, which includes a planter 1m high as a barrier and the FSR calculation plan excluded the areas of the corridors on Levels 1 and 2 opposite the opening and identified this area as "breezeway". O'Neill C explains at [34] as follows: "The difference between the parties turns on the definition of GFA, particularly the phrase "measured from the internal face of external walls". The Council relied on Landmark Group Australia Pty Ltd v Sutherland Shire Council [2016] NSWLEC 1577 (Landmark Group) at [36] and [59]. The applicants relied on the interpretation of "external walls" in GGD Danks Street P/L and CR Danks Street P/L v Council of the City of Sydney [2015] NSWLEC 1521 (GGD Danks Street) at [31]. There is no definition of "external wall" in LEP 2012. The definition of GFA excludes terraces and balconies with outer walls less than 1.4m high. There is no dictionary definition of the phrase, "external walls"." 1. O'Neill C respectfully disagreed with the finding in Landmark v Sutherland saying at [37] that "The test is not the "prospect of rain entering the breezeway" or whether the external space is identified as a breezeway or a corridor (at [36]). For the units adjoining the corridor to each be a dwelling, they must be enclosed on all sides by external walls or common walls. As the corridor was open at each end, the side walls of the corridor had to be external walls to the units on either side of the corridor." I agree and adopt the conclusion of O'Neill C in HPG Mosman at [38] and [39] that "[38] … the calculation of GFA has to be consistent with the LEP definition. The definition of GFA should be clarified or amended so that common horizontal circulation in multi-residential developments, such as corridors or breezeways, is explicitly included in the definition of GFA. [39] On the basis of the definition of GFA in LEP 2012, the area of the breezeways on Levels 1 and 2 of the proposal do not contribute to the calculation of GFA and the proposal complies with the FSR development standard." 1. At par 168 of the JER, Mr Wood explains his reasoning as follows: "The issue of calculation of breezeways and GFA is often contested as to what is 'counted' and what is not 'counted'. I note that in HPG Mosman Projects Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1243 it was found that a breezeway was excluded from GFA based on consideration as to whether the walls around the breezeway to the units were 'external walls'. This was based on a finding that the corridors were external spaces because the walls lining the corridor would have to be external walls in order to make the units adjoining the corridor habitable space. Put simply there was a need for weatherproofing to those walls because the breezeway corridor was open to the elements and could get wet etc. My understanding is that the same set of circumstances apply to this scheme that the walls to the units facing the circulation corridor will need to be constructed as external walls for weather protection- and I understand that the walls facing the circulation space are proposed as external walls to be constructed of Hebel. Therefore the breezeways in my view should be excluded from GFA because of the way in which the walls onto the breezeways are designed- i.e. as external walls." 1. Accordingly, I do not agree with Ms Warton that Mr Wood does not explain as to how the circumstances are the same as the subject Application (JER, par 149) because Mr Wood expressly states: "My understanding is that the same set of circumstances apply to this scheme that the walls to the units facing the circulation corridor will need to be constructed as external walls for weather protection- and I understand that the walls facing the circulation space are proposed as external walls to be constructed of Hebel." 1. Having considered the expert evidence I conclude that none of the breezeways should be included in the GFA calculation and that the first option is appropriate. 2. The second condition not agreed between the parties is condition (1D)(b). The Applicant seeks approval of the Schedule of Finishes in accordance with DWG 30 Rev H and as a result seeks the deletion of proposed condition (1D)(b) which reads as follows: "The materials and finishes as shown on Drawing Site Elevations 9 Rev H are not approved, and the approved finishes and materials are as shown on the development as originally approved under DA/183/206 on Drawing DA111 Rev LEC-C dated July 2018 are to be implemented." 1. In relation to materials, contention 4(c) – Mr Cardogan's evidence is that there is an overreliance on painted elements and that the colour smoked claret in DWG 30 is visible from the street and the Applicant submits that the material finishes are consistent with what is on the street and of equal quality to what is being replaced. Ms Castellanos' evidence is that the materials and finishes are not uncommon and not out of character and not a reduction of quality. 2. The Applicant does not wish to utilise pre-cast concrete panels as approved in the original consent. As observed on the view, the majority of new development in the vicinity of the proposal utilise Hebel construction. Council's stated concern regarding maintenance is unfounded with no evidence being submitted in support of this contention. 3. Having considered the evidence and having had the benefit of inspecting the local area, I accept Ms Castellano's evidence and conclude that the materials and finishes as sought by the Applicant are appropriate and accordingly condition (1D)(b) is deleted. 4. Finally, the Applicant also seeks deletion of the proposed additional condition 5F which deals with above ground power lines because this condition was not in the original approval and there is nothing in the Proposed Modification to warrant this condition. 5. The new proposed condition 5F reads as follows: "All existing overhead power lines within or adjacent to the development site shall be relocated underground to Energy Australia standards and specifications. If not practicable to relocate the power line underground, arrangements shall be made with Energy Australia to place the conduit to carry those power lines underground so that they can be utilised at a later date by Energy Australia. In this regard all associated costs shall be borne by the applicant." 1. The Applicant relies on the decision of 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 (1643 Pittwater) at [40] and [41] and submits further that the Court has no evidence to support the new condition sought by the Council. McClellan CJ said as follows: "[40] As a consequence, when an application is made to modify an existing consent, it will almost always be a request to modify a consent which has been granted subject to conditions. In these circumstances it would be impossible to consider the impact of the modification without an understanding of the effect of the existing conditions upon the modified consent. For the same reason it would be unreal to require a consent authority to evaluate an application to modify a consent without considering whether conditions made necessary by the modifications should be imposed. [41] To my mind, the discretion of a consent authority to impose conditions should only be confined if the parliament has provided for it in clear terms. Otherwise, the conventional approach to the exercise of a power to approve or refuse consent should be adopted. In the present case, the statute contains no suggestion that the discretion is confined and, accordingly, I am of the opinion that conditions may be imposed by a consent authority when determining an application for modification." 1. The Respondent submits that this decision does not close the scope and at [54] conditions can be imposed to cure a problem and that for reasons unknown a condition was not imposed when consent was originally granted and that there is a requirement in the Georges River Development Control Plan 2021 (DCP) Control 6 of 25 Site Facilities (Ex 2, Tab 9) and the DCP now Control 6 of 19 Site Facilities (Ex 2, Tab 7). McClellan CJ said at [54] as follows: "[54] It is apparent that the reasoning of the President in Michael Standley would more readily provide for the power which the Council exercised in the present matters. An application to modify the consent having been made, the Council, when considering that application, could reconsider, at least relevant elements of the original consent and, if it perceived a need to cure a problem, which may not have been apparent previously but now is, impose a new condition." 1. I accept the Applicant's submission and conclude that the condition 5F should be deleted because it was not imposed in the Consent and does not relate to any relevant element. The Respondent has not identified a problem that requires curing, that is, the above ground cables are not a problem with the development and the proposed condition is a preference of the Respondent. 2. Having determined the final terms of the conditions, I will direct the parties to provide the Court conditions of consent in accordance with my findings as follows: 1. Condition (1A)(b) relating to gross floor area (GFA) calculation to be in accordance with option 1 of the Proposed/Draft Conditions of Consent filed 27 July 2023 (Ex 3) in accordance with [77] above; 2. Condition (1D)(b) relating to materials and finishes to be deleted and any consequential changes as required throughout the conditions in accordance with [81] above; and 3. Condition 5F regarding above ground power poles be deleted and any consequential renumbering of conditions as required in accordance with [86] above. 1. Upon receiving the conditions of consent Annexures A and B, I will then uphold the appeal and approve the modification. Directions and order: 1. The Court directs that: 1. By 8 December 2023 the parties are to file conditions of consent that reflect my findings at [87] using the templates for Annexures A and B. 1. The Court orders that: 1. The matter is listed for Online Court at 12pm, 8 December 2023. E Espinosa 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: 23 November 2023