Land and Environment Court of New South Wales CITATION : Tenacity Investments Pty Limited v Ku-ring-gai Council [2010] NSWLEC 1263 APPLICANT Tenacity Investments Pty Limited PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10221 of 2010 CORAM: Moore SC KEY ISSUES: DEVELOPMENT CONSENT :- Modification application; is the proposed development, if modified, substantially the same development as that originally approved; extent of additional excavation and consumed and embedded energy; amenity of proposed new apartment; impact on neighbours Environmental Planning and Assessment Act 1979 s 96AA(1)(a) Ku-ring-gai Town Centres Local Environmental Policy 2010 LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance Ku-ring-gai Town Centres Development Control Plan 2010 Civil Procedure Act 2005 s 56 Tenacity Investments v Ku-ring-gai Council [2006] NSWLEC 148 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Ali v Liverpool City Council [2009] NSWLEC 1327 CASES CITED: Vasic Pty Limited v Penrith City Council (1992 unreported - Stein J) Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Limited [1998] NSWSC 163; (1998) 43 NSWLR 468 Scrap Realty Pty Limited v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 Tenacity Investments v Ku-ring-gai Council [2006] NSWLEC 649 DATE OF JUDGMENT: 22 September 2010 APPLICANT Mr T Sattler, solicitor Sattler & Associates Pty Limited LEGAL REPRESENTATIVES: RESPONDENT Mr P Marincowitz, solicitor Sparke Helmore Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE SC 22 September 2010 10/10221 Tenacity Investments Pty Limited v Ku-ring-gai Council JUDGMENT 1 SENIOR COMMISSIONER: To the south-west of the Pacific Highway, as it passes through the Pymble shopping centre, the topography falls away into a valley with a drainage line along its centre. The next street to the south-west of the Pacific Highway, Everton Street, runs south-east to north-west across the head of this valley. Pymble Avenue and Livingstone Avenue each run parallel to the north and south, respectively, of the drainage line. At the head of the drainage line, with frontages to Everton Street and Pymble Avenue (at the corner with Everton Street), Tenacity Investments Pty Limited (the company) has a development site known as 2-4 Everton Street and 2 Pymble Avenue (the site). The site is L-shaped, with a total area of ~ 2,900 m2. The company has development approval, granted by Roseth SC (see Tenacity Investments v Ku-ring-gai Council [2006] NSWLEC 148) for the erection of four townhouses on the 2 Pymble Avenue element and a residential apartment block containing 18 dwellings on the Everton Street allotments. 2 Since the 2006 decision of Roseth SC, the site has been rezoned as a consequence of the coming into force of the Ku-ring-gai Town Centres Local Environmental Policy 2010 (the Town Centres LEP). For my initial consideration in these proceedings, as discussed below, nothing turns on this changed zoning but, to assist understand the shape and location of the site, reproduced below is an extract from the zoning map of portion of a map from the Town Centres LEP upon which I have marked, in green, the boundaries of the site. Figure 1 The modification application 3 The application that is the subject of these proceedings is, in practical if not formal terms, an application pursuant to s 96AA(1)(a) of the Environmental Planning and Assessment Act 1979 (the Act) to modify the development consent initially granted by Roseth SC. Although there has also been further modification of this original consent, it is not necessary, in these proceedings, for me to consider those modifications within the statutory framework and consideration I must initially undertake. The reasons for this are discussed later. The modification application has, in effect, three elements to it. These are: o the deletion of the proposed method of access to the two basement car parking levels – access which had been approved to be by two electrically operated vehicle lift elevators with this to be replaced by an excavated spiral ramp with passing bays and directional traffic control signals – and resultant landscaping amendments; o the utilisation of a void in the south-western corner of the upper of the two basement levels to create a one bedroom adaptable apartment; and o a range of other internal alterations and rearrangements to the two residential building elements of the proposed development. The issues 4 Ku-ring-gai Council (the council) raises no issues concerning any statutory inhibition to considering the proposed modification on its merits. However, the council says that, although the first and third of the three elements of the modifications set out above are acceptable, the proposed new apartment should be rejected on a number of grounds. These grounds can be summarised as what is said by the council to be the inadequate standard of amenity that would be provided to occupants of this apartment and visual and acoustic privacy concerns arising from the creation of an additional residential level. The council also raises provisions of a possibly applicable development control plan. 5 A number of residents in nearby properties have adopted the issues that are raised by the council and have also raised a number of other issues. Some of those issues, relating to visual bulk of the proposed apartment building, impact on views and the like are matters that were, effectively, determined in the earlier proceedings before Roseth SC. 6 However, one matter not pressed by the council, but raised by two of the objectors, concerns the question of whether I have jurisdiction to approve the modification because it does not satisfy the test set by s 96AA(1)(a) of the Act – namely, is the development that will result from the modification, if approved, substantially the same development as that which was originally granted development consent? Although not articulated in precisely such lawyerly terms, the two objections raised this issue in the following fashions. 7 Mr Dobrijevic, a neighbouring resident of Pymble Avenue, wrote: 15. Alternatively, it may be considered a new application because of the inclusion of the car ramp if one argues that the car ramp is not a re-agitated issue. 8 Mr Wickham, also a neighbouring resident of Pymble Avenue, also wrote: This is a major change and we believe this should require a Development Application. 9 The hearing proceeded on the basis of that I was required to hear and determine this jurisdictional question as a matter arising as a consequence of the provisions of s 79C(1)(d) of the Act. The site inspection 10 I inspected the site in company with the legal representatives of the parties and those experts advising them. During the course of the site inspection, I not only inspected the site but I also visited the homes of three of the resident objectors in order to obtain an appreciation of their evidence. A number of the resident objectors gave their evidence, informally, in accordance with the now adopted practice, during the course of the site inspection. Notes of that evidence were subsequently tendered. In addition, following the site inspection, one of the objectors whose property had been inspected, Mr Dobrijevic, also gave further evidence in court. The decision making sequence 11 First, prior to setting out the matters that are to be considered in an analysis of the s 96AA(1)(a) issues, it is appropriate for me to set out my understanding of the way I am required to deal with the decision-making hierarchy in these proceedings. 12 I do this as, at the end of his closing submissions in reply, Mr Sattler, solicitor for the applicant, sought to tender additional proposed conditions of consent to address a number of matters which I had raised with him and with the architects who had given expert evidence, Mr Smith for the council and Mr Bakker for the applicant, concerning the proposed landscape treatment and developments on top of the proposed car park ramp and in the vicinity of approved townhouse for the eastern end of the role of four townhouses on the north-western corner of the site. 13 I rejected this application as I had indicated that these were matters of concern to me, in that area, during the first phase of the hearing and that, had Mr Sattler wished to seek to address those matters, that should have been raised at the commencement of the resumed hearing rather than in the dying minutes of submissions in reply when there was no opportunity to explore the proposed changes with the architects and when no notice had been given to the council of such proposed further amendments (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27). 14 It is my understanding that the decision-making sequence that I am required to follow is to determine whether or not the proposed modifications that are the subject of the application satisfy the test under s 96AA(1)(a) of the Act and, if so (and only if so), then on to proceed to the merit assessment of the proposed modification (including engaging the amber light approach – see Ali v Liverpool City Council [2009] NSWLEC 1327 at para 120 et seq as to whether or not the modifications, if not acceptable in the form proposed, can be rendered acceptable by requiring changes to them that would still remain within the scope of the modification application). The jurisdictional test 15 Although the application to the Court purported to be made pursuant to s 96 of the Act, as the original consent had been granted by Roseth SC and the modification application made to the council, the correct provision of the Act engaged is s 96AA. However, nothing of substance turns on this and, if it had been (or subsequently becomes) necessary to correct this, such would merely be a procedural technicality. 16 The relevant provision is as follows: 96AA Modification by consent authorities of consents granted by the Court (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 17 In Vasic Pty Limited v Penrith City Council (an unreported decision variously cited as being of the 18th or 24th February 1992), Stein J, when dealing with the meaning of the words substantially the same development (considering the then s102 of the Act) said that: In approaching the s102 assessment exercise one should not fall into the trap of saying that the development was for a certain use, extractive industry, and as amended it will be precisely the same use and accordingly and substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. 18 In Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, in the oft quoted passage at paras 55 and 56, Bignold J described process for consideration of proposed modification of development as follows: 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 19 From what Bignold J says in Moto, it is clear that there are two elements to the required assessment of whether a modified development would be one that was substantially the same development as that originally approved. The first requires a qualitative assessment and the second requires a quantitative one. 20 It is also clear that s 96AA, like s 96, is to be regarded as a facultative, beneficial provision. It is to be construed and applied in a way that is favourable to those who seek to benefit from the provision (see North Sydney Council v Michael Standley & Associates Pty Limited [1998] NSWSC 163; (1998) 43 NSWLR 468 per Mason P). The nature of the three modification elements 21 At the outset, it is appropriate to note that, in my consideration of matters that arise pursuant to s 96AA(1)(a), I am not to undertake an assessment of whether the modifications are acceptable, consistent with the decision of Preston CJ in Scrap Realty Pty Limited v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 [dealing with the same question – but as posed in s 96(2) of the Act], that is a matter that follows at the second step if, and only if, the first step is satisfied. 22 As a consequence, it is appropriate to describe the nature of each of the three modification elements but, with respect to the third of them, it is not necessary to do so in any significant detail – as they are not a matter of controversy at either the first or the second step of the decision-making sequence I am undertaking. 23 It is, therefore, convenient to commence with the range of internal modifications to the various apartment levels (there is also an addition of an extra fire escape to the basement car park of the proposed townhouses). These internal modifications include reconfiguration of a number of apartments as a consequence of the deletion of the proposed vehicle elevators and the necessity to have additional space for the downward spiralling ramp. There has also been a necessary reconfiguration of the pedestrian access to the proposed apartment building as a further consequence. There have been minor internal alterations to common areas as a consequence of the proposed new apartment on the upper basement level and there have been a number of other modifications, approved by Roseth SC in an earlier modification application in 2006 (see Tenacity Investments v Ku-ring-gai Council [2006] NSWLEC 649), to the internal layout and configuration of a number of the approved apartments. 24 It is the council's position, not only on the general question that arises as a consequence of the broad s 96AA(1)(a) consideration but also as a subsidiary element of that, that there is no substantial change to the original approved development as a consequence of this element of the present modification application – even taking into account and adding to the present proposed changes, those changes that were approved by Roseth SC in 2006. 25 Although the plans that, by a series of overlays, permitted a comparison between the original 2006 approved development and that which would result if the present modification application were to be approved and added to the 2006 modifications, were shown to be inaccurate in a number of minor detail respects concerning the matters of modification of the nature described above, I do not consider that these inaccuracies could alter my acceptance of the council's conclusion that these modification elements, in the third class listed earlier, are of such little consequence in my consideration of the s 96AA(1)(a) test so that, in total, all the aspects of this element of the proposed modification could not contribute, in any way, to any adverse finding on the s 96AA(1)(a) test. 26 The second aspect of the modification application is the proposed insertion of an additional one bedroom adaptable living apartment in the south-western corner of the upper of the two basement levels of the apartment building. The ground level of this apartment, on its south-western aspect, will be approximately 200 mm, on the final revised version of the plans, above the existing ground level in this corner of the building. 27 For the purpose of my s 96AA(1)(a) assessment, it is not necessary to consider the issues that are raised by the council concerning whether the internal amenity of this apartment is acceptable or not. 28 However, the matter that is appropriate to be considered is the matter raised by the council, in its merit objection, of the creation of this apartment leading to an additional dwelling overlooking the private open space of Mr and Mrs Dobrijevic's dwelling immediately down slope – a private open space that is across the fence, some 6 m or so from the living area windows of this apartment and immediately adjacent to portion of the paved private open space area proposed to serve this apartment. 29 In this regard, although not a matter of merit assessment of the acceptability or otherwise of visual and acoustic privacy impacts on Mr and Mrs Dobrijevic's private open space or on their dwelling, in making a qualitative assessment of the extent of changes to the development that would result if this modification were to be approved, the mere existence of that additional overlooking and the proximity that would result for the private open spaces of the two properties is a qualitative change that requires to be considered as part of this assessment. 30 In addition, although there is a genuine issue between the parties as to whether or not, in a merit assessment of the modification application, the relevant environmental planning instrument is the now replaced Ku-ring-gai Planning Scheme Ordinance or the currently operating Town Centres LEP, I do not need to determine this for the purposes of my assessment pursuant to s 96AA(1)(a). It is sufficient, in my opinion, to observe that, without this additional apartment, the portion of the building within which it is to be located would be compliant with the relevant height and storey controls contained in the Town Centres LEP and the various relevant controls contained in the Ku-ring-gai Town Centres Development Control Plan 2010 (the Town Centres DCP) but with this apartment is not compliant. 31 Expressly noting that I am not undertaking this analysis for determining which set of controls are those to which regard should (or might) be had in any merit assessment of the proposed new apartment, I note that, for the purposes of my qualitative assessment of pursuant to s 96AA(1)(a), the experts agreed that there was, albeit only in a small element of the proposed new apartment, a breach of these height and storey controls. 32 I am of the view that, as a consequence, as part of the qualitative assessment of the proposed modification application, it is relevant to note that the insertion of the proposed additional apartment would result in this element of the development of changing from being compliant under the controls, as at the date of my determination, to one that is not compliant. 33 It would seem to me that the two matters that I have outlined above are the only matters with respect to the proposed new apartment that give rise to matters that inform my consideration pursuant to s 96AA(1)(a). 34 The third element of the proposed modification is the replacement of the two vehicle elevators with the proposed spiral ramp (with the ramp's attendant passing bays and signalised operation). In conjunction with these alterations, come alterations to the landscaped communal open space between the townhouse and apartment building elements of the development. These changes to the landscaping and communal open space areas arise as a consequence of the fact that, in lieu of a generally more open driveway area running towards the underground parking to serve the townhouse portion of the development, the driveway will also now provide the entrance point to the downward spiral of the proposed car park access ramp. 35 As part of this redesign, there is proposed to be a more extensive "lid" placed on the original car park access design to the townhouse element and a significant rearrangement of the landscaping and communal open space areas in this vicinity. These are discussed separately, later. 36 To enable an understanding of the now proposed ramp, it is appropriate that I reproduce four extracts from the plans – being those which show, in plan and in elevation, the development that was originally approved (based on vehicle elevator access to the basement car parking) followed by the contrasting plan and elevation showing the proposed downward spiralling ramp access. 37 The two images that appear immediately below are those that relevantly reflect the development of as approved by Roseth SC in 2006. Figure 2 Figure 3 38 The two plans that appear below are those for which consent is sought in the present modification application. It is important to note, in light of the discussion that follows, that when looking at the lower of these two images, it depicts a section of the ramp only and any lay observer should appreciate that what is shown comprises only some elements of the annular cylinder that is intersected by this elevation (rather than the totality of the volume that will require to be excavated for this spiral ramp structure) – a matter to which I turn after these images. Figure 4 Figure 5 39 During the period between the first phase of the hearing and the final hearing day, a break made necessary because there had not been provided a proper and appropriate comparison between that which had been approved by Roseth SC in the original development consent (as unmodified) and that which would result in if this modification application were to be approved, the architects undertook a further consideration of a question I asked them during the course of the initial hearing phase – this question seeking to understand the extent of the additional excavation that would be necessary for the purposes of constructing the proposed ramp. During the gap between hearings, they produced an agreed set of calculations concerning site excavation – the relevant elements of these calculations are reproduced (and explained) below: Item Excavated material Excavation for unit block 13,417 m3 Ramp volume 4,117 m3 Less centre core retained 538 m3 Net total ramp excavation 3,582 m3 Overlap of elevator excavation with ramp excavation 874 m3 Increase in excavation (if modification approved) 2,708 m3 40 In the context of considering the extent of the additional excavation, it is appropriate to note that Mr Sattler, on instructions, agreed that the company would accept an additional condition of consent requiring that the spiral ramp be built by an enclosing piling system so that the central core would not need to be excavated and replaced with this reducing the overall amount of excavation to that shown above. 41 As a consequence, I am undertaking this s 96AA(1)(a) assessment on the basis that there will be a net additional excavation for the apartment building of ~ 2700 m³ or approximately an additional 20% above the amount that would be excavated pursuant to the original development consent. 42 In my consideration of the qualitative as well as the quantitative aspect of this additional excavation, I invited Mr Sattler to make such submissions as he might wish on the question of the additional energy cost of the proposed spiral ramp system compared to the vehicle elevator system. He submitted that, in operational terms, it was possible that the ramp system would be more energy efficient and should not be concluded as being any less energy efficient (as the amount of time with the engine running for a vehicle to transit the ramp in either direction would be less than the time queuing to access the electrically operated elevator and the energy used in the transit to from the basement via the elevators) than the elevators. 43 Although I do not have any evidence on this point, for reasons that are set out later in the decision, I except that it is appropriate to take this aspect at its highest for the company and, thus, assume that there is no operational energy penalty as a consequence of the modification. However, this is not the only energy impact. 44 The excavation of an additional 2700 m³ of material, even if only soil and no sandstone or other rock is encountered [thus requiring more energy consuming excavation technologies than merely digging – again assuming the highest position for the company], there will still be a not inconsequential additional energy consumption in undertaking this excavation. 45 In addition, these additional 2700 m³ will need to be removed from the site and disposed of elsewhere. The consequence of this will be that there will be a not insignificant number of additional truck movements to the site, empty, and from the site, full, for the disposal of this spoil. In addition, there will be a not insignificant additional consumption of concrete and reinforcing steel in the emplacement of the spiral driveway ramp and the provision of such materials will, itself, also involve not insignificant additional truck movements to and from the site. 46 All of the matters described immediately above necessarily involve consumption of energy, whether the embedded energy that necessarily follows from the manufacturing or preparation processes of the materials or from the direct energy consumption of the transport of construction materials to the site or the removal of waste or excavation spoil from the site. 47 Two of the objectors expressed their concern about the visual impact that the proposed ramp structure would have on the outlook from their properties. Those objectors were Mr Dobrijevic and Ms Nugara-Boyd. 48 Although the architects agreed that it would be possible that a small portion of the ramp structure would be able to be viewed from the front yard of Mr Dobrijevic's residence, the nature of the slope of his front yard that was observed during the course of a site inspection; the separation distance between the proposed ramp structure and his front yard; and the far more visible nature of the approved apartment building, in itself, in the more immediate foreground, causes me to conclude that although the structure of the ramp would be visible from his property, the impact of such visibility would be so small as not to contribute to any possibility of an adverse finding as part of my s 96AA(1)(a) assessment. 49 Ms Nugara-Boyd lives in the apartment block to the north-east, on the high side of Everton Street, and has a view from her principal balcony that is presently over the site. Her outlook will, when the approved apartment building is constructed, be directly toward that structure. She will also have a downward view, at a slightly oblique angle, to the landscaped area that will be on top of the entry to the ramp and the entry to the access to the basement car parking for the townhouse building. Mr Sattler submitted that any view that she might have of this landscaped area (and the more extensive communal open space proposed for it) would be mitigated by two substantial eucalypt trees that are presently on the site (which trees are to be retained) together with the proposed plantings that, in time, would also provide significant removal of any overlooking of this area. 50 I accept Mr Sattler's submissions on this point. It is my view that, even in the short term, sufficient shielding will be provided by the existing eucalypts that are to be retained to ensure that such viewing as might be had of this area would be minimal. I do not consider that the limited visual impact that this area might create for the outlook from Ms Nugara-Boyd's apartment could make any contribution to an adverse s 96AA(1)(a) finding. 51 There are three changes to the landscaping in the vicinity of townhouse 4 proposed by this modification application that, in my view, need to be taken into account on the s 96AA(1)(a) assessment. All three of these alterations have arisen as a consequence of the creation of the concrete covering for the proposed spiral ramp. The landscaping plans, for this area, are reproduced below (with the plan for the development as approved by Roseth SC appearing first and that which is proposed by this modification application following). Figure 6 Figure 7 52 The elements of these plans that require consideration in the s 96AA(1)(a) assessment process are as follows: o the significant increase in paved area for the communal barbecue facility and its relocation immediately adjacent to the wall of townhouse 4; o the reduction in the landscaping between the now proposed expanded barbecue area and the private open space of townhouse 4 and the south-west facing window toward the Everton Street end of the external wall to townhouse 4; and o the deletion of the proposed outdoor drying area. 53 For the purposes of this assessment, I consider it is reasonable to assume that the increased size of the proposed communal barbecue area means that its intensity of use is liable to be increased. This possibility of increased intensity of use is coupled with this area being moved significantly closer to the window and private open space of townhouse 4. This, inevitably, increases the likelihood of adverse acoustic impacts on the occupants of townhouse 4 as a consequence. 54 The removal of the communal drying area deletes an opportunity for passive solar clothes drying and thus removes an opportunity for residents to be less dependent on energy consuming clothes dryers. 55 As discussed below in more detail in my contingent merit assessment, my conclusions concerning these landscaping elements of the proposed modification are only taken into account for the qualitative and qualitative analysis required by s 96AA(1)(a) but would otherwise be amenable to rectification by ameliorative further modification later discussed when adopting, on a merit assessment, the amber light approach now taken by members of the Court to such merit assessments. Conclusion concerning the s 96AA(1)(a) test 56 I am satisfied that the proposed modification, if approved, would not be substantially the same, either quantitatively or qualitatively, as the original development approved by Roseth SC. I have reached this conclusion for the following reasons derived from the factors set out earlier in this decision. 57 I am unable to accept that the modified development would be substantially the same, in its qualitative aspects, because of the extent of the additional excavation required, not merely in the pure volumetric terms derived from the agreed calculations of the architects but also from the additional extent of developed space that will be occupied on the site – as is visually clear from the plan and section depictions shown earlier. 58 In addition, there will be a not insignificant increase in materials consumption for the construction of the ramp and a not insignificant increase in the number of truck movements in the vicinity of the site. This latter point is of consequence given the uncontradicted evidence of the objectors concerning the traffic difficulties experienced by local residents in using Everton Street and in accessing the Pacific Highway. Whilst there is uncontested traffic evidence that the traffic generation from the development, when completed, will be essentially unchanged by the modification, and will be acceptable, such a conclusion is not automatically to be drawn with respect to the construction process when comparing the originally approved development and the proposed modified development and is self-evidently not correct during the construction process for the reasons discussed. 59 In addition, in a quantitative sense, the insertion of the proposed apartment in the south-western corner has the effect of creating an agreed non-compliance with the relevant provisions of the Town Centres LEP. This impact is also a qualitative one. 60 The insertion of the proposed new apartment in the south-western corner of the upper basement, creates an additional residential level from which there would be overlooking of the private open space of the Dobrijevics' property. 61 For all of these reasons, I am not satisfied that the development, as modified, would be substantially the same development as that which was originally approved. 62 In reaching this conclusion, I expressly note that the overlooking of the Dobrijevics' property is not a necessary element for me reaching this conclusion, as I am satisfied, on the qualitative elements associated with the proposed spiral ramp alone, that the qualitative element of the test is failed solely on that basis. 63 The simple proposition that, because the proposed spiral ramp is largely invisible to those outside the development although it will be visible to a number of apartments within the proposal, is not a reason to set aside the appropriate consideration of the qualitative and qualitative differences between the proposals for the purposes of s 96AA(1)(a) assessment. However, as I have earlier discussed, I accept that there is no visual impact of the proposed ramp that could contribute to any adverse s 96AA(1)(a) finding. 64 Qualitatively, the proposed modification must separately fail the s 96AA(1)(a) assessment test. I have reached this conclusion for an accumulation of the reasons earlier described. These are the qualitative aspects of the additional energy and materials consumption that will arise from the construction of the ramp; the qualitative impact of the additional traffic generated during the construction process for the ramp on residents in the vicinity of the site; and the adverse acoustic privacy impacts on proposed townhouse 4 and the linked qualitative impact of the deletion of the passive solar drying facility. 65 In addition, the qualitative impact of the additional overlooking of the Dobrijevics' property together with the poor internal amenity of the proposed new apartment in the south-western corner, as discussed in more detail in the merit assessment below, reinforce (but are not necessary to be taken into account, in my view, in reaching) this conclusion. 66 In undertaking the s 96AA(1)(a) assessment test, I am mindful of the fact that it is long established that the ability to apply to modify a development consent should be regarded as both facultative and beneficial. As a consequence, I have not only approached by s 96AA(1)(a) assessment on this basis but have, as earlier noted, taken the company's case at its highest for the purposes of this assessment. 67 Despite the fact that s 96AA is both facultative and beneficial, even considering it in that fashion, I am unable to conclude that, either qualitatively or qualitatively, the proposed development, if modified as proposed, would be substantially the same development as that which was originally approved by Roseth SC. It therefore follows that the orders of the Court, at the conclusion of this judgement, will be to dismiss the appeal and refuse the proposed modification. Merit assessment 68 However, if I am wrong in that the conclusion that I have reached on the jurisdictional test arising under s 96AA(1)(a), I should proceed, in my view, to a merit assessment so that, if there be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there might be a just, quick and cheap resolution of such matters as might arise on the remitter – thus facilitating achieving the objectives of s 56 of the Civil Procedure Act 2005. The merits of the proposed change car park access 69 I have earlier set out, briefly, my reasons for not considering that there would be any significant adverse visual impact of the proposed car park ramp and I need not repeat those here. 70 As to the adverse impacts on townhouse 4 by the revised landscaping on the lid of the ramp, I am satisfied that this could be resolved by a further revised landscaping plan that, effectively, reinstated the originally proposed communal barbecue area at its original location and dimensions. The accompaniment of such relocation of the communal barbecue area should also be accompanied by a reinstatement of the passive solar drying facility proposed to be deleted. 71 Although concerns were raised by objectors about the safety of the proposed ramping system and its technical operation, I am satisfied on the uncontradicted expert evidence of Mr Varga, the traffic engineer engaged by the company, that these concerns are unfounded. 72 Although there were objections raised by the residents, as noted above, the council did not raise any concerns about the ramp and I am satisfied, subject to one further set of conditions that should be able to be settled between the council and the company, that, on a merit assessment basis, the ramp should not be rejected. 73 The sole outstanding matter would be the addition of a condition to the conditions of consent applying during construction stages that would ensure that additional construction traffic, whether for removal of excavated material or delivery of construction materials such as reinforcing or concrete, made necessary by construction of the spiral ramp, took place outside those peak traffic hours in Everton Street and the Livingstone Avenue access to the Pacific Highway (whether those peak traffic periods were occasioned by commuter use of the street network or by parental traffic during morning and afternoon pupil delivery or collection periods for Pymble Ladies College (or any other school in the vicinity potentially impacted). 74 I turn, now, to a merit assessment of the proposed additional apartment. 75 There are several aspects of the proposed new apartment that can be dealt with in short compass. 76 The first, the issue of privacy raised by Mrs Ming, a resident of Livingstone Avenue, is a concern that cannot provide any basis for contribution to the refusal of this proposed apartment. The separation distance between her existing residence and the location of the proposed apartment, a distance in excess of 20 m, simply cannot provide any basis for such an adverse inference. The separation is well in excess of any control which could apply and that is well within the societal accepted norms for mutual neighbourly respect requiring observance in comparatively densely settled urban areas. 77 The concerns raised by Mr. Hill, a resident of a nearby property in Livingstone Avenue, were dealt with by Roseth SC and not accepted by him. I have considered Roseth SC's analysis of Mr. Hill's concerns and share the conclusions reached with respect to them. 78 Mr. Marincowitz, solicitor for the council, raised issues concerning what the council considers to be non-compliance with the height and storey controls that the council says are applicable to the site for the purposes of this modification application. 79 Mr. Sattler submitted that the council was incorrect in its analysis of the controls that should be regarded as applicable. He submitted that, in any event, even if the council were to be considered correct in this regard, no vice was contained in the proposed apartment as a consequence because it was within the already approved bulk, scale and height of the apartment building element dealt with in the initial development consent by Roseth SC. 80 I have not found it necessary to determine this contest between the parties as I consider that, whatever might be the relevant applicable technical controls of this nature, the internal amenity of the proposed apartment, however considered, is inadequate and warrants its rejection. 81 Similarly, although, as earlier discussed in the s 96AA(1)(a) analysis, there would be an additional residential level overlooking the private open space of Mr. and Mrs Dobrijevic's residence down slope, this impact (whether caused by an apartment that was or was not height and storey control compliant) is, in my assessment, irrelevant. 82 I have reached this conclusion on this merit aspect because, in the longer term, the fact that Mr. and Mrs Dobrijevic's property has also been included for apartment development by virtue of the zonings in the Town Centres LEP means that it is reasonable to expect, over time, that such development would occur on Mr. and Mrs Dobrijevic's property – thus establishing a new and more intense neighbourly relationship than would be the case with the present development in juxtaposition with their existing residence. Moreover, the setback from the boundary of the private open space of this proposed apartment, together with the proposed boundary landscaping, when coupled with the fact that any future development on Mr. and Mrs Dobrijevic's property would have to meet similar minimum boundary setbacks and appropriate landscaping requirements, also removes this potential overlooking as a matter of significance in my present assessment. 83 However, if I am wrong in this conclusion and regard should be had to such overlooking, as I have already indicated, I am satisfied that the proposed additional apartment has sufficiently poor amenity for its future residents that, on this basis alone, it should be rejected and any contribution that might properly be made by overlooking concerns to the private open space of Mr. and Mrs Dobrijevic's property is unnecessary to support such rejection. 84 I commence my analysis of the internal amenity of the proposed additional apartment by acknowledging the fact that, if the new apartment were approved, the overall development that would result would remain compliant with the requirement for at least 70% of the proposed total development having satisfactory solar access. However, that is not, in my assessment, a complete (or indeed any satisfactory) answer to the concerns raised by the council about the amenity of this proposed apartment. 85 Portion of the private open space of this apartment is semi-subterranean – comprising a paved courtyard area that will, in part, be some 1 m below natural ground level – as shown in the section in Exhibit N. Although issues of internal floor-to-ceiling heights were rectified by a late amendment to the plans on the final day of the hearing, in response to concerns raised by Mr. Smith, this lowering of the floor to achieve an acceptable floor to ceiling height for this proposed apartment has merely meant that this negative is removed. However, the proposed apartment retains its at least partial semi-subterranean nature. 86 It was agreed by the planning and architectural experts that this proposed apartment is non-compliant for solar access to the apartment. It is put on behalf of the company that, however, it is compliant for daylight access, a position that I accept – but only on the technical basis upon which it is assessed. This assessment is derived without having any regard to vegetation in the vicinity that might, otherwise, impact on such daylight access. 87 However, that is not the end of the matter in this regard. On the adjacent Mings' property, to the south, there are located, within a reasonably close proximity of the boundary with the site, two substantial Himalayan Cedar (Cedrus deodara) trees that would provide significant interruption to any daylight that would be available to the proposed apartment and would, in themselves, also lessen the limited amount of sunlight that might otherwise be available to this apartment if those trees were absent. 88 From my observation of their location compared to the boundary between the site and the property upon which those trees are located, it is not unreasonable to assume, in my view, that any approval for redevelopment of the property upon which these trees are located would be likely to include a requirement for their retention – thus retaining their negative impact on the amenity of this proposed apartment. 89 Further, the site upon which these trees are located, in company with its adjacent property on the corner of Everton St and Livingstone Avenue, have also been zoned by the Town Centres LEP for apartment development. When that occurs, any height and setback compliant development on that site will likely further exacerbate impacts on access to daylight and possibly (but not necessary for the purposes of this assessment) adversely impact the present already limited direct solar access to this apartment. 90 A final impact on access to daylight for this proposed apartment will be the establishment, over time, of the proposed boundary landscaping around the perimeter of the private open space for this proposed apartment. 91 The consequence all the foregoing is that, although the overall solar acceptability of the project will not be compromised if the proposed additional apartment were to be approved, I am satisfied that the internal amenity of the proposed additional apartment is so poor, by a combination of its semi-subterranean nature; lack of direct solar access; and poor (and likely to deteriorate in the future) access to daylight, that this apartment should be rejected. 92 In addition, I have not taken any account of the fact that this apartment is intended to be an adaptable one and, as a one-bedroom apartment, is also regarded as being, if only in a local housing hierarchy sense rather than in any absolute sense, a contribution to affordable housing in the municipality. 93 Such an apartment, to be used by a person with a disability if its adaptability were to be utilised or, possibly, as a matter of social equity in its community, requires at least a reasonable degree of amenity (and perhaps a higher level of amenity) to be acceptable and thus to be able to be approved. However, I have not had regard to this possibly higher threshold as a consequence of the proposed adaptability of the apartment in reaching my conclusion that, on broad grounds of amenity, this proposed apartment is unacceptable and should be rejected (even if I am wrong on my section 96AA(1)(a) assessment and the proposed modification is capable of approval). Conclusion 94 I have concluded that, although an issue only raised by the objectors and not by the council, I cannot be satisfied that the proposed modified development, if approved, would be substantially the same development as the development originally approved by Roseth SC in 2006. As a consequence, I am satisfied that I do not have the power to approve this modification on the merits. 95 However, it if I were found to be wrong in this conclusion, on a merit assessment, I am satisfied that the proposed car park access ramp should be approved but that the proposed additional apartment, on the basis of its unacceptable amenity to its future residents, should be refused. 96 I have reached this latter conclusion without needing to determine any of the technical issues relating to height and storey controls that might be applicable to the proposal. Orders 97 The orders of the Court are: 1. The appeal is dismissed; 2. Application to modify the existing development consent for 2-4 Everton Street and 2 Pymble Avenue, Pymble, is refused; and 3. The exhibits are returned. Tim Moore Senior Commissioner 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.