Land and Environment Court of New South Wales CITATION : Williams v Warringah Council & Anor [2002] NSWLEC 36 APPLICANTS: Stefan Williams and Janelle Williams PARTIES : RESPONDENT: Warringah Council INTERVENERS: Tim Trumper and Elizabeth Wilkins FILE NUMBER(S) : 10471 of 2001 CORAM: Lloyd J KEY ISSUES: Development Application :- modification Environmental Planning and Assessment Act 1979, s 96 and s 79C LEGISLATION CITED: Land and Environment Court Act, s 39 Warringah Local Environmental Plan 2000 Warringah Local Environmental Plan 1995 CASES CITED: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433; Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 DATES OF HEARING: 01/11/2001, 01/11/2001, 14/11/2001, 29/01/2002 and 30/01/2002 EX TEMPORE JUDGMENT DATE : 01/30/2002 APPLICANTS: Mr P C Tomasetti (barrister) SOLICITORS: Cowley Hearne Lawyers RESPONDENT: Mr I J Hemmings (barrister) LEGAL REPRESENTATIVES: SOLICITORS: Wilshire Webb INTERVENERS: Mr P J McEwen SC SOLICITORS: Deacons Lawyers JUDGMENT: 10 IN THE LAND AND Matter No: 10471 of 2001 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 30 January 2002 Stefan Williams and Janelle Williams Applicants v Warringah Council Respondent Tim Trumper and Elizabeth Wilkins Interveners EX TEMPORE JUDGMENT 1. The applicants, Mr and Mrs Williams, appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the refusal by the respondent, Warringah Council ("the council"), of an application to modify a development consent. 2. On 21 November 2000 the council granted development consent to demolish a three-storey residential flat building containing two flats at No. 75 Undercliff Road, Harbord and to subsequently erect of a new three-storey residential flat building containing two flats. The development application was approved following a mediation between Mr and Mrs Williams and the owners of No. 77 Undercliff Road, Mr T Trumper and Ms E Wilkins, which was facilitated by the council. As a result of the mediation the development was changed to meet the objections raised by the owners of No. 77, which included moving the front of the proposed building some two metres further back from the front boundary; and the owners of No. 77, Mr Trumper and Ms Wilkins, would be permitted to relocate their proposed dwelling forward by approximately 1.4 metres towards the front boundary. Others changes were also made to the proposed building to meet the objections raised by the owners of No. 77, so that the development consent granted by the council reflected the agreements reached by the parties at the mediation. 3. The modifications to the development consent, which the applicants seek, would undo some of the matters which were agreed at the mediation. These are as follows: (1) an extension of the building towards the front boundary by 2 metres (being an extension of the main bedroom by 700 mm and an extension of blade walls beyond the face of the extension by 1300 mm); (2) a reinstatement of the roof terrace over the living rooms on the north-eastern part of the building with a 1.5 metres high opaque glass privacy screen on its southern edge; and (3) removal of a row of windows on the southern elevation, to be replaced by skylights. 4. As a result of the mediation there had been agreement that blade walls in a similar position to that which is now proposed be deleted; the north-eastern roof terrace be deleted (leaving only the north-western roof terrace); and the southern wall (facing No. 77) be articulated by the use of windows to overcome the large expanse of a blank solid wall. 5. On 20 September 2001, Sheahan J granted leave to the owners of No. 77 Undercliff Road, Mr Trumper and Ms Wilkins, to participate in this appeal by the following means: (a) having legal representation before and at the hearing; (b) being served with the copies of all affidavits, statements of evidence and expert reports upon which the parties intend to rely; (c) giving evidence on affidavit and, if required for cross-examination by a party, orally at the hearing; (d) adducing further lay and expert evidence relevant to the issues in the proceedings, as detailed in any statement of issues filed by the parties; (e) cross-examining witnesses relied upon by the parties, to the extent (if any) allowed by the judge or commissioner presiding at the hearing; and (f) making submissions at the conclusion of the hearing. 6. At the commencement of this appeal the applicants sought to further modify their application in a number of respects. I refused to allow consideration of the further modifications because they have not been publicly notified in accordance with the council's Public Exhibition and Notification Development Control Plan No. 1. 7. Before turning to the merit issues of the modification application, there is an issue raised by the interveners, Mr Trumper and Ms Wilkins, relating to the agreement reached at the mediation. The issue raised is whether the applicants in the present proceeding are estopped from departing from the representations they made in the mediation and from the agreement reached therein. 8. There is an obvious difficulty with this issue. The consent authority was the council. As a consequence of the council's refusal of the application for modification the consent authority is now the Court. The agreement that was reached between the applicants and the interveners at a mediation was facilitated by the council. The council as the consent authority was not bound by the agreement reached at the mediation and neither is the Court. Moreover, in determining the application for modification, the council and now the Court, is administering a public statute, the EP&A Act, and is bound to apply the provisions of that statute even where such provisions may conflict with any private agreement reached between parties. In the present case, both the council and the Court are bound to apply the statutory considerations set out in ss 96 and 79C of the EP&A Act, notwithstanding any such private agreement. I am reinforced in this view by cl 32 of the Warringah Local Environmental Plan 2000 to which my attention has been drawn. Clause 32 provides as follows: Any agreement, covenant or similar instrument, to the extent that it purports to restrict or prohibit development allowed by this plan or the granting of a consent, does not apply. This does not affect the rights or interests of any public authority under any registered instrument. 9. I accept, however, the observation of Mr H M Sanders, the town planning consultant called by the council, of the fact that a mediated agreement is not an irrelevant consideration. I also refer to s 39(4) of the Land and Environment Court Act 1979, which provides: 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. 10. It is, of course, in the public interest for parties to reach an agreement by mediation and it is in the public interest for a mediated outcome to be implemented. As I have said, however, the mediated agreement reached between the applicants and the interveners is not binding on either the council or the Court, particularly in the event of countervailing statutory provisions. It is nevertheless a matter which is to be taken into consideration by the Court as both a circumstance of the case and the public interest. 11. The existing development consent which followed after the process of mediation was granted by the council on 21 November 2000. The relevant environmental planning instrument which was then in force was the Warringah Local Environmental Plan 1985 ("Warringah LEP 1985"), under which the development was prohibited. The development application was nevertheless able to be considered and approved because the existing development, being the existing three-storey residential flat building on the land, was an existing use of that land. 12. On 5 December 2000 the Warringah Local Environmental Plan 2000 ("Warringah LEP 2000") commenced under which the applicants' development became a permissible land use with consent. 13. In considering the merit issues of the present application to modify the consent, the consent authority must take into account such of the matters referred to in s 79C of the EP&A Act as are of relevance to the development the subject of the application (s 96(3) of the EP&A Act). In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433, the Court of Appeal held (at 441-442) that this requires the consent authority to consider any matter under that section relevant to the whole development as modified. In that case, Mason P (with whom Sheppard AJA agreed) held (at 442) that: [A] consent authority is required to consider the totality of the development as proposed for modification and to take into consideration such of the matters referred to in s 90 [now s 79C] as are of relevance to that development. 14. The matters for consideration under s 79C of the EP&A Act include, relevantly, the provisions of any environmental planning instrument and of any development control plan. The relevant environmental planning instrument is now the Warringah LEP 2000. I thus do not agree with the opinion in the report of Mr L S Winnacott, the consultant town planner who gave evidence for the applicants, that the modification application should be considered under the former Warringah LEP 1985. Neither do I agree with his opinion that determining weight should not be given to the development standards contained in the Warringah LEP 2000. The terms of s 79C of the EP&A Act and the decision of the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd demand otherwise. 15. The Warringah LEP 2000 provides that before granting consent for development, the consent authority must be satisfied that the development will comply with: (a) the relevant requirements made by Parts 2 and 3, and (b) development standards for the development set out in the Locality Statement for the locality in which the development will be carried out . (See clause 12(2)) 16. Clause 18(1) in Pt 2 provides: (1) Built form will be controlled in accordance with the general principles of development control, the desired future character of the locality and the development standards set out in the Locality Statement. 17. Clause 20(1) in Pt 2 is as follows: 20 Can development be approved if it does not comply with a development standards? (1) Notwithstanding clause 12(2) consent may be granted to proposed development even if the development does not comply with one or more development standards, provided the resulting development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental policy. 18. The reference in clause 18(1) to the general principles of development control is a reference to Pt 4, containing cll 38 to 83, which is headed "General Principles of Development Control". 19. The subject land is situated within Locality H1 Freshwater Beach. The relevant locality statement sets out a number of development standards. I turn now to consider the proposed modifications against those development standards: (1) Buildings are neither to exceed two storeys nor 8.5 metres. The proposed building is three storeys, which will not change, but the height to the top of the proposed privacy screen to the roof terrace will result in an increase to the height of the building. The height is calculated from natural ground level. It is not clear from the evidence what the natural ground level of the subject property is. Notwithstanding whatever is taken to have been the natural ground level, as Mr Sanders points out in his evidence the effective height from the actual ground level will, of course, in any event be increased. The council in granting the development consent imposed a maximum height at an RL of 32. The proposal will increase that maximum height, such additional height being comprised mainly the glass screen wall. This will, in my opinion, have the effect of increasing the apparent bulk of the building. (2) Development is required to maintain a minimum front building setback, being the average setback of the adjoining dwellings. There is some dispute as to how the average setback of the adjoining dwellings is to be measured. The applicants concede that the building as modified may not comply with the minimum front building setback. It is nevertheless clear that only the proposed north-eastern blade wall will infringe the minimum front building setback and it will only do so to a marginal extend. (3) Buildings must be sited within an envelope determined by projecting planes at 45 degrees from a height of 5 metres above natural ground level at the side boundaries. Depending upon where the natural ground level once was, the approved development may not comply with this requirement. The proposed south-eastern blade wall would further increase such non-compliance with this development standard, if there is already a non-compliance therewith. It would also have an adverse effect on the amenity of the adjoining property, No. 77 Undercliff Road, in restricting the outlook from, in particular, the kitchen of the proposed dwelling at that property. (4) The minimum area of landscaped space is to be 40 per cent of the site area. The approved development does not comply with this development standard. The proposed modifications will not further increase the non-compliance with this development standard but the approved non-compliance remains. 20. As I have noted, however, cl 20(1) of the Warringah LEP 2000 allows the consent authority the discretion to grant consent to a proposed development even if the development does not comply with one or more of its development standards, provided that the development is consistent with the general principles of development control, the desired future character of the locality and any relevant State environmental planning policy. In the present case there is no relevant State environmental planning policy which applies to the development. 21. As I have noted, the reference in cl 20 to the general principles of development control is a reference to Pt 4 of the Warringah LEP 2000, cll 38 to 83. As with the development standards, there is a number of provisions in Pt 4 which are relevant. These have been identified by Mr Sanders, whose evidence I prefer to that of Mr Winnacott, principally because the latter erroneously regarded the former planning instrument rather than the current Warringah LEP 2000 as the appropriate instrument governing this application. As Mr Winnacott said in his oral evidence, the opinions expressed in his report are based on the premise that determining weight should not be given to the Warringah LEP 2000. He repeated this statement in the following terms: "The LEP 2000 should be considered but should not be given determining weight". As I have noted, this approach is incorrect. 22. The relevant provisions of Pt 4 of the Warringah LEP 2000 identified by Mr Sanders are as follows: (1) Clause 38 provides that development is not to result in glare or reflection. There is, in Mr Sanders' opinion, a potential for such reflection from the proposed glass privacy screen to the roof terrace. According to the evidence of Mr T Chenchow, the architect for the subject development, however, the potential for glare or reflection can be reduced by acid etching of the glass. (2) Clause 43 provides that development is not to result in noise emission which will unreasonably diminish the amenity of the area. As there is very little in the way of useable landscaped area at ground level, it can be expected that the usage of the roof terrace would be high. The obscure glass privacy screen will, on the evidence, offer a noise reduction of not less than 8dB(A) from the roof terrace towards the neighbouring property, No. 77. I accept in this respect the expert evidence of Dr R Tonin, who states in his report: To put this into perspective a small party, five to ten people, making normal and raised conversation would comply with the council's LEP at all hours. A large party, twenty to forty people, engaged in raised conversation would comply with the council's LEP in the daytime and evening hours. At night, as is the case with any party conducted outdoors in any residence in Sydney, noise can become an issue if it is not properly controlled and may require guests to be moved in doors depending upon the level of activity. (3) Clause 57 provides that on sloping land, the height and bulk of development, particularly on the downhill side, is to be minimised. The proposed development is on sloping land and the subject property, No. 75, is on the downhill side of No. 77. Both the privacy screen on the roof terrace and the extension of the building at the front will increase the visual bulk of the approved building. (4) Clause 61 provides that development is to allow for the reasonable sharing of views. The proposed modifications to the approved development would result in some marginal reduction in views from, in particular, the kitchen, but not the main living areas of No. 77. (5) Clause 65 relates to privacy and overlooking. It is suggested by Mr Sanders that the proposed modification being the new roof terrace on the northern-eastern part of the approved building has the potential, notwithstanding the 1.5 metres privacy screen, to allow overlooking to the main bedroom of the approved building at No. 75. The evidence of Mr Chenchow, however suggests that there would be no overlooking. (6) Clause 66 provides that buildings are to have a visual bulk and an architectural scale consistent with structures on adjoining or nearby land and are not to visually dominate the street or surrounding spaces, unless the applicable locality statement provides otherwise. The relevant locality statement does not provide otherwise. The proposed privacy screen to the roof terrace and the extension of the building at the front will increase the apparent bulk of the approved building. 23. During the hearing the applicants offered to put what might be described as false glazing in the southern elevation of the building where glazing is shown on the upper level of the approved development, in conjunction with the addition of skylights. This would appear to be an acceptable modification which would not infringe any of the provisions of the Warringah LEP 2000 and this modification will, as a consequence, be allowed. 24. The reasons advanced for the blade walls are principally to prevent looking into the bedrooms at the front of the approved building at No. 75 from the terrace of No. 77. Secondly, the blade walls allow fire separation between the two buildings Nos. 75 and 77, in accordance with the requirements of the Building Code of Australia. It appears, however, that the blade walls of two metres are not necessarily required to meet the requirements of the Building Code of Australia for fire control. If the blade walls are not to be added then reliance would have to be placed on an active fire control system, namely fire sprinklers, which would be susceptible to corrosion from the salt laden air of the location. 25. There is an option which the applicants would agree to: an extension of the existing master bedrooms walls by 1100 millimetres which would apparently satisfy the requirements of the Building Code of Australia for fire control. This, of course, is not the two metres extension which the applicants seek, but which would, as I have said, satisfy the requirements of fire control under the Building Code of Australia. It would also lessen to some extent, the loss of view which is suffered from No. 75 if the full two metres extension at the front of the building was to proceed. In my opinion such a solution would be a reasonable one and ought to be acceptable. 26. That is to say, there are now two modifications which will be acceptable to the Court, namely the placement of false glazing in the southern wall of the proposed building and an extension of the blade walls from the face of the existing approved master bedroom by 1100 millimetres. 27. This brings me to the proposed roof terrace. The modification incorporating the additional roof terrace, in my opinion, should not be approved. As I have said, the additional height would increase the apparent bulk of the building, something which is sought to be limited by the Warringah LEP 2000. It would certainly put more people on the roof as it would be, in my opinion, the principal outdoor recreation area for No. 75 Undercliff Road. It commands extensive views over the Harbord Valley, the beach and the ocean. It would be an attractive place for people to congregate and it could generate, as Dr Tonin recognises, noise at night which may require guests to be moved indoors. 28. As I have noted, it is not an irrelevant consideration that the approved development is the result of an agreement reached between the applicants and the interveners facilitated by the council and it is, I think, in the public interest for the Court and for local councils to encourage the use of mediation to resolve disputes; and it is in the public interest that agreements reached following mediation be implemented. Whilst the mediated agreement in this case is not binding on the consent authority, which has a number of statutory considerations to take into account, it is a factor which I take into account as a matter of circumstance of the case and in the public interest. For that reason also, I decline to accept that part of what is sought which incorporates an extension of the roof terrace. 29. In short what I propose is that the appeal be allowed in part. The Court as the consent authority, under the power to modify, does not have jurisdiction to modify a development consent other than in the terms applied for by the applicant, unless with the consent of the applicant (Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 at 260). If the applicants do not consent then the appeal must be dismissed and the application for modification must be refused. I direct the applicants to bring in short minutes of order which give effect to what I have indicated. That can be done at any time by arrangement with my associate. The exhibits may be returned. I hereby certify that the preceding 29 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd Associate Dated: 30 January 2002 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.