Land and Environment Court of New South Wales CITATION : 258 Crows Nest Development Pty Ltd v North Sydney Council [2006] NSWLEC 420 APPLICANT 258 Crows Nest Development Pty Ltd PARTIES : RESPONDENT North Sydney Council FILE NUMBER(S) : 11468 of 2005 CORAM: Tuor C Development Consent :- s96 application for an additional unit KEY ISSUES: whether substantially the same development non compliance with height control impact on amenity, overshadowing and daylight Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 1 North Sydney Local Environmental Plan 2001 Lido Real Estate Pty Ltd & Anor v Woollahra Council NSWLEC118 ; Vacik Pty Ltd v Penrith City Council (unreported, Stein J, 10242 of 1991, 24 February 1992) ; CASES CITED: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 ; Moto Projects No. 2 Pty Ltd v North Sydney Council (1999) 106 LGERA 298 ; Pafburn v North Sydney Council [2005] NSWLEC 444 DATES OF HEARING: 13/04/2006 DATE OF JUDGMENT: 07/12/2006 APPLICANT Mr D Briggs, solicitor D G Briggs and Associates RESPONDENT LEGAL REPRESENTATIVES: Mr M Causer, solicitor Mallesons Stephen Jaques INTERVENOR Mr Pickles, barrister Hones Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 12 July 2006 11468 of 2005 258 Crows Nest Development Pty Ltd v North Sydney Council JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal by North Sydney Council (the council) of an application under s96AA of the Environmental Planning and Assessment Act 1979 (the Act) to modify the approved development (DA 1010/01/5) to provide an additional residential unit on the approved roof terrace level at 258 Pacific Highway, Crows Nest (the site). 2 For the reasons set out in this judgment I have concluded that the appeal should be upheld and the development approval modified. The site and its context 3 The site is located on the western side of the Pacific Highway to the north of Bruce Street. It is rectangular in shape being approximately 7.3m wide with an area of 242.8sqm. A mixed use development is currently under construction on the site. The development has five above ground levels (ground level retail and four residential plus a roof level communal area accessed by a lift and stairs). 4 The adjoining property to the south (250 Pacific Highway) is a seven level mixed use building (ground level retail and six residential levels). To the north (262 –284 Pacific Highway) is a multi level retail and office development consisting of two buildings. The history of the proposal 5 The Court refused a similar application (Appeal No. 10751) on 22 December 2000. The reason for refusal was primarily the provision of on site parking. The Court considered the amenity impacts on the adjoining development at 250 Pacific Highway but this was not given determinative weight in the reasons for refusal of the proposal. 6 Council refused development application (DA 1010/01) for a 5 storey mixed use commercial building on 19 August 2002. The applicant appealed this decision (Appeal No 10647 of 2002). Subsequent amendments were made to the plans and the Court made consent orders on 27 February 2003, subject to conditions. Council has since approved two s96 applications of relevance to this application which provide for the addition of a lift motor room and the deletion of the roof level swimming pool and spa. 7 The current s96AA application was lodged on 20 September 2005 and was notified to adjoining and nearby residents. Council received nine submissions. A report recommending refusal of the application was considered by Council on 12 December 2005, but council deferred determination of the application. The applicant lodged an Appeal and subsequently lodged amended plans to address the issues raised by council and the Court appointed expert, Mr Stephen King, who provided evidence on overshadowing and loss of light to the light well, terraces and rooms at 250 Pacific Highway. The amended plans were readvertised and further submissions were received. 8 On 13 March 2006 council considered a report recommending approval of the application subsequent to discontinuance of the appeal. Council resolved to enter into consent orders subject to appropriate conditions. 9 On 6 April 2006, Jagot J granted leave for the owners of units 603 and 604, 250 Pacific Highway to be joined under s38 of the Act. On this basis the matter could not be heard as consent orders, although the issues between the council and the applicant were resolved. Planning Framework 10 The site is in the Mixed Use zone under North Sydney Local Environmental Plan 2001 (LEP 2001). The proposed development is permissible with consent within the zone. 11 Cl 14 (2) of LEP 2001 provides: Consent must not be granted to the carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of the controls. 12 The objectives of the cl 29 - Building Height control relevantly are to: b) encourage an appropriate scale and density of development for each neighbourhood that is in accordance with and promotes the character of the neighbourhood, and c) provide reasonable amenity for inhabitants of the building and neighbouring buildings, and d) provide ventilation, views, building separation, setback, solar access, light, and avoid overshadowing of windows, landscaped areas, courtyards, roof decks, balconies and the like, and f) avoid the application of transitional height as justification for exceeding height controls. The height control specified in cl 19(2) of LEP 2001 is 16m. The proposal exceeds this control. The parties agreed that for the reasons set out in Lido Real Estate Pty Ltd & Anor v Woollahra Council NSWLEC118 and because of the operation of s 96(4) of the Act that an objection under State Environmental Planning Policy No 1 (SEPP 1) is not required to vary the provisions of LEP 2001. The issues 13 Council's Statement of Issues contained 4 issues which were resolved between it and the applicant. The Intervenor's Statement of Issues contained 3 issues which were essentially the same as those originally raised by council. The issues can be summarised as: i) Whether the development is substantially the same as the development that was originally granted development consent. iii) Whether the amenity impacts on units 603 and 604, 250 Pacific Highway are reasonable, given the breach of the height control. 14 Other residents of 250 Pacific Highway also raised issue regarding the impact on their residential amenity by the loss of light and ventilation to the light well. Council also originally raised this issue. Substantially the same 15 Section 96(2) of the Act provides that: A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) .… 16 In Vacik Pty Ltd v Penrith City Council (unreported, Stein J, 10242 of 1991, 24 February 1992) Stein J at p 3 stated the appropriate test in the following terms: … 'substantially' when used in the section means essentially or materially or having the same essence". 17 The formulation of the test was approved by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475. 18 To determine whether the development is "essentially or materially or having the same essence" Bignold J in Moto Projects No. 2 Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309, states: The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 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. 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). 19 Mr Pickles' submission, on behalf of the Intervenor, was that the proposal was not substantially the same as the original consent. On a quantitative basis when compared to the original approval, the proposal replaces the communal terrace and pool with an apartment. The proposal would be five residential levels compared to four. The fifth level would exceed the statutory height control. The approved lift and stair did not comply with the height control but were set back against the higher building to the north and were approved to provide access to the communal area and pool. 20 Mr Pickles submitted that these changes would impact on the amenity of adjoining residents at Units 603 and 604 by increasing overshadowing, reducing daylight and changing the outlook to these apartments. The residents of these apartments had reasonable expectations when purchasing their property that the height control would be upheld and the approved development constructed. 21 Mr Pickles concluded that the quantitative changes and the resultant amenity impacts resulted in a development that was not substantially the same as that which was approved. Further he submitted that the circumstances of the approval and the expectations of the residents were relevant considerations. 22 In considering whether the proposal is substantially the same the report to council of 13 March 2006 stated: The amended plans have reduced environmental impacts to a point where the qualitative aspects of the section 96 application will be substantially the same as that originally approved. From a quantitative aspect, the proposal is still an additional storey outside the approved envelope, however there are minimal impacts on surrounding sites and the proposal is an infill between two higher buildings. On balance, and in light of responses to other issues, this issue is not likely to be a determinative weight. 23 For the reasons which I will discuss below I find that the changes to the approved development and the resultant amenity impacts are not such to reach a conclusion that the proposal is not substantially the same development. Amenity impacts on 250 Pacific Highway 24 The owners of units 603 and 604 provided evidence on site and a written submission. They considered that their units were most likely to be affected by the proposal. These units are both two levels (level five and level 6) with windows facing north adjacent to the site. Level 6 is above the proposal and will be unaffected by it. This level contains the kitchen, dining and formal entertaining area. Level 5 has bedrooms and is also used as an office area and tv/family room. The owners stated that they spend considerable time on level 5 as they regularly work from home. They were concerned about the impact of the proposal on their north facing sun, as well as light and ventilation. They were also concerned about the change to the outlook from their units in comparison to what was approved. They were particularly concerned that these impacts were as a result of a breach in the height control. 25 Other residents of 250 Pacific Highway were concerned that the increase in the height of the building would reduce light and ventilation to their units from the light well. They considered that the proposal would be precedent for other developments to exceed the height limit. 26 The amended plans resolved the issue of view loss. The remaining amenity impacts can be summarised as: · Overshadowing of the light well and north facing windows · Loss of daylight · Change in outlook 27 Mr King undertook a detailed assessment of the overshadowing and impacts on daylight on 250 Pacific Highway. Mr King stated the approved development will have a "dramatic" change on the current amenity of the units. However, it was important not to compare what is proposed against the existing situation, but rather against what has been approved. 28 In relation to overshadowing of level 5, Mr King's assessment of the amended plans is summarised on page 4 of his supplementary report (exhibit 6). This states that the windows facing the light well (W1, W2, W3 and W4) are not affected by additional overshadowing. There would be an increase in overshadowing to the glass block windows on the boundary and to the north west terrace (T7) for part of the morning. Mr King stated that the additional storey had been designed to eliminate any additional winter overshadowing to the light well beyond that already approved. 29 In relation to daylight access Mr King's evidence was that there would be no perceptible difference to the light levels at the lower residential levels, based largely on the fact that only low levels of daylight would be achieved with the approved development. There would be a reduction in daylight to the upper levels but these levels would still achieve an acceptable level of daylight for the tasks likely to be undertaken in a residential environment. 30 Mr Pickles submission was that while the level of daylight was suitable to carry out tasks this did not quantify the impact on the amenity for the users. The glass block windows enjoy uninterrupted access to sunlight which will be reduced by the proposal. 31 Mr Pickles also submitted that the proposal would impact on the outlook from level 5. The approval provided an outlook to glass screens and planter with a view of the sky beyond. This would be replaced by an outlook to a building that is 2.5m higher. Mr Pickles stated that these impacts may be acceptable if they resulted from a complying development but were unacceptable when they resulted from a breach in the height control. Mr Pickles referred to the following principles espoused by Roseth C in Pafburn v North Sydney Council [2005] NSWLEC 444. ……. The first theme is that change in impact may be as important as the magnitude of impact. Where a north-facing living room receives uninterrupted sunlight all day in mid-winter, the occupant is likely to perceive its reduction to three hours as a major loss of amenity, despite the fact that the three hours of retained sunlight complies with the rule of thumb in most development control plans and the RFDC. The second theme is that in assessing an impact, one should balance the magnitude of the impact with the necessity and reasonableness of the proposal that creates it. An impact that arises from a reasonable or necessary proposal should be assessed differently from an impact of the same magnitude that arises from an unreasonable or unnecessary proposal. For example, adding a balcony to the living room of a dwelling that has no other balconies is a more reasonable proposal than adding a balcony to a dwelling that already has six balconies. ……. ……. The fifth theme is that an impact that arises from a proposal that fails to comply with planning controls is much harder to justify than one that arises from a complying proposal. People affected by a proposal have a legitimate expectation that the development on adjoining properties will comply with the planning regime. 32 The council report of 13 March 2006 assessed the proposal against these principles and stated: The proposed modifications are in breach of the height control on the site. Accordingly the impacts of the proposal on the neighbours must be given considerable weight in determining the application. The only impact on the neighbour now is the difference in outlook from the bedroom windows from the approved - obscure glass screens about 1.8m high to the proposed - walls with obscure glazed windows about 2.4 metres high (and 600 millimetres closer). This impact on their amenity seems to be the only matter needing assessment. Having regard to the facts that the light is no longer affected to the bedrooms and living areas are not affected and the neighbouring apartments are two levels with the upper level totally unaffected - the impact is minimal from a planning point of view and difficult to quantify. Findings 33 If the impacts of the proposed amendment resulted from a complying development they would be reasonable as they affect essentially bedroom and secondary living areas of two storey apartments. The upper level and main living areas are unaffected by the proposal. 34 The question is whether these impacts are reasonable as they result from a breach in the height control. In answering this question it is important to consider the degree of impact and whether this is reasonable given the expectation of the planning controls. 35 The impact on light to the lower levels is minimal as based on Mr King's evidence the reduction in light levels between what is approved and what is proposed would not be readily perceived. The impact on ventilation from the increase in height is also not likely to be perceptible. 36 The change in outlook from the windows of unit 603 and 604, which face the light well is also not of such weight as to warrant refusal of the application. 37 The proposal has been designed to be setback from the light well and the terraces of level 5 and to place the walls of the proposed unit against the blank walls of the adjoining building. The proposal has been amended to provide a light shaft where it adjoins the glass block window to the bedroom in Unit 603 and 604. The sun and daylight to be received by these windows will be reduced. However, I do not consider that this impact on the amenity of these units is such that it would warrant refusal of the application. The windows are secondary windows to a bedroom. The other windows to the bedroom room face the light well and will be unaffected by the proposal. The approved development proposed planter boxes and plants hard up against these windows, which would have reduced the light level. When this is balanced against the light that will be maintained by the light shaft I do not consider the impact to be unreasonable. 38 In reaching this decision I am mindful of the principles in Pafburn and that the impact results from an increase above the of height limit of about 2.5m. However, I do not accept that this means that a proposal can only be approved if there is no impact at all, but rather that the impact should be consistent with that which is envisaged by the planning controls. The difference in light levels to a secondary glass block window to a bedroom between what is approved and what is proposed will not unreasonably reduce the level of amenity to these rooms or to the units and is not beyond that envisaged by the height control. 39 While an objection under SEPP 1 is not required, the proposal when assessed against the objectives of the height control meets these objectives. The proposal is an infill building, which does not exceed the height of the adjoining buildings. It provides reasonable amenity to neighbouring buildings, particularly when assessed against what has been approved, and does not impact on ventilation, views, solar access or daylight in an unreasonable way. Orders 40 For the above reasons the Orders of the Court are: 1. The appeal is upheld. 2. The application under s96AA to modify the approved development (DA 1010/01/5) to provide an additional residential unit on the approved roof terrace level at 258 Pacific Highway, Crows Nest, is approved. The consent is amended as set out in Annexure "A". 3. The exhibits, except exhibits 4, 5, 7, R1, R4 and A, may be returned. __________________ Annelise Tuor 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.