Land and Environment Court New South Wales Medium Neutral Citation: Future Acquisition Pty Ltd v Council of the City of Sydney [2018] NSWLEC 5 Hearing dates: 01 February 2018 Date of orders: 13 February 2018 Decision date: 13 February 2018 Jurisdiction: Class 1 Before: Robson J Decision: See orders at [62]-[63] Catchwords: MODIFICATION APPLICATION – appeal – actual refusal – approved mixed use development – modification of a development consent – changes to setback – building height – staged development – overshadowing – bulk and scale – residential objectors – public interest – visual impact – where changes are within limits imposed by statutory controls – appeal allowed Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), s 96, s 97AA Environmental Planning and Assessment Regulation 2000 (NSW) State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (NSW) Sydney Development Control Plan 2012, cl 2.12, cl 4.2 Sydney Local Environmental Plan 2012, cl 1.2, cl 4.3, cl 4.4, cl 4.6 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Cases Cited: Auswin TWT Development Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1273 Category: Principal judgment Parties: Future Acquisition Pty Ltd (Applicant) Council of the City of Sydney (Respondent) Representation: Counsel: S Duggan SC (Applicant) J McKelvey (Respondent) Solicitors: Mills Oakley (Applicant) Council of the City of Sydney (Respondent) File Number(s): 2017/00325754; 2017/00325755 Publication restriction: No Judgment 1. Before the Court are two appeals brought pursuant to s 97AA of the Environmental Planning and Assessment Act 1979 (NSW) ('EPA Act'). Future Acquisition Pty Ltd ('applicant') appeals against the refusal by City of Sydney Council ('Council') of two modification applications made pursuant to s 96(2) of the EPA Act in respect of a development for a new five to nine storey mixed use development on the land known as 485 – 521 Harris Street, Ultimo ('site'). The modifications proposed by the applicant essentially consist of changes to the floor space, building envelope, and layout of the development so that four one-bedroom units can be converted into two-bedroom units. 2. The development is a staged development. Proceedings 2017/00325755 ('Stage 1 appeal') is against the refusal of Modification Application D/2014/1147/B, which seeks approval for the Stage 1 building envelope changes. These changes consist of additional floor space on levels five and six of 65 square metres and 52 square metres respectively, a modification to the building envelope, and a reduction in the setback for levels five and six. Proceedings 2017/00325754 ('Stage 2 appeal') is against the refusal of Modification Application D/2016/367/C, which seeks approval for the Stage 2 detailed design changes. These include all of the changes sought in the Stage 1 appeal, as well as changes to the façade along and roof above the Bulwara Road frontage and changes to the internal plans for the building. Because the Stage 1 appeal and the Stage 2 appeal raise similar issues, and because the latter cannot be approved if the former is refused, the appeals are being heard together. 3. For the reasons that follow, I have determined that the appeals should be upheld. Background 1. The site is an irregular shape, and has an area of 5,322 square metres. It has frontages to three streets, being bounded to the north by Kirk Street, to the east by Harris Street, and to the west by Bulwara Road. It is on a block bounded by William Henry Street to the south. 2. The approved development is currently under construction on the site. On Bulwara Road, there is terrace housing to the north and southwest of the site. A four-storey residential flat building known as 'Burlinson Gardens' is on the opposite side of Bulwara Road. Ultimo Community Centre is at the intersection of Bulwara Road and William Henry Street to the south of the site, and the Ian Thorpe Aquatic Centre is on the opposite side of Harris Street. 3. On 23 July 2015, Development Application D/2014/1147 for Stage 1 building envelope approval received development consent by order of this Court in Auswin TWT Development Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1273. The development was described by Commissioner O'Neill as a "building envelope of a mixed use development, comprising residential units across four buildings and retain at ground floor fronting Harris Street". 4. One of the conditions of consent was that a competitive design process be carried out prior to the lodgement of a development application for Stage 2. The selection panel selected the winning design, which necessitated an alteration to the building envelope, in May 2016. 5. On 8 December 2016, Council approved Modification Application D/2014/1147/A, which altered the terms of the Stage 1 building envelope consent so as to accommodate the winning design. Concurrently with D/2014/1147/A, the applicant lodged Development Application D/2106/367. This was approved by the Central Sydney Planning Committee on 8 December 2016, thereby granting deferred commencement consent for Stage 2, the detailed building design. In its submissions, Council draws attention to the fact that these modification applications sought to partially "fill in" the four metre setback at levels five and six along Bulwara Road. Although the applications were approved, the original setback was maintained through conditions of consent. 6. On 20 January 2017, the applicant lodged Modification Application D/2016/367/A to modify conditions relating to construction management and waste management. It was approved on 13 February 2017 and the conditions precedent having been satisfied, the Stage 2 consent was active from that date. 7. The applicant lodged a further Modification Application, D/2016/367/B, on 2 March 2017. It sought approval to amalgamate six units on level 9 into one four-bedroom apartment and to convert part of the roof terrace from communal to private. It was approved by Council on 12 May 2017. 8. On 16 July 2017, the two modification applications which are the subject of these proceedings were lodged by the applicant. Both applications were refused consent by Council on 5 October 2017. The applicant commenced appeals against the refusals in this Court on 27 October 2017. 9. In response to a Notice of Motion filed by the applicant on 3 November 2017 seeking expedition, this Court ruled that the Stage 1 and Stage 2 appeals were to be heard together. Council filed a Statement of Facts and Contentions on 24 November 2017 and the applicant filed a Statement of Facts and Contentions in Reply on 1 December 2017. Evidence 1. The evidence before the Court comprises an extensive bundle of documents containing detailed historical material regarding each of the earlier applications for both development consent and the various modifications. This documentation contains the supporting material in respect of each application, numerous supporting reports, and plans. The documentation also includes extracts from the relevant planning controls and various internal Council reports and memoranda. Included in the material are photomontages and graphic depictions detailing aspects of the proposed modifications. 2. Expert evidence was given by Giovanni Cirillo, town planner and Rohan Dickson, urban designer, for the applicant, and David Zabell, town planner and Allison Cronin, urban designer, for Council. The experts provided an extensive joint report and gave oral testimony. Attached to the joint report are updated photomontages and shadow diagrams, CAD generated views from the sun, further extracts from Council's planning instruments, and associated material. 3. The form of the expert joint report addresses the various contentions raised in the Statement of Facts and Contentions prepared by Council as well as the Statement of Facts and Contentions in Reply prepared on behalf of the applicant. The primary issues raised by Council related to overshadowing, bulk and scale, and public interest. Despite this, in an unusually worded document, the applicant raised a further 12 separate contentions including 32 discrete "particulars". Notwithstanding the applicant's document, the three contentions raised by Council were the essential matters in dispute. 4. The documentation also contained 58 written submissions received in response to the notification of the modification applications. The Court heard oral evidence from local objectors including Patricia Johnson, William Nixey, Keith Johnson, and Yimmy Seifert. The written and oral evidence of the objectors was presented on behalf of both a number of individuals and on behalf of two local community associations being the Ultimo Village Voice and the Pyrmont Action Group. There was also a reference in the oral evidence to concerns of the Friends of Ultimo Network. 5. The evidence of the objectors addressed the primary issues raised by Council and also highlighted significant community concern in relation to the development process that led to the current modification applications. In particular, many of the objectors' concerns reflected a long-term opposition to the approved development as well as the more recent modification proposals. The fact that the primary changes now sought as part of the current modifications were either specifically deleted from earlier applications and/or were the subject of earlier consideration by this Court as well as Council is a recurring theme in the objectors' submissions. Issues 1. Council raises three primary issues: 1. The modifications have an unacceptable overshadowing impact. 2. The modifications are unacceptable in terms of their bulk and scale. In particular, the six-storey street wall height at Bulwara Road does not reflect the existing and desired future character of the surrounding area. 3. In consideration of the above two matters, the history of the development process and objections received by Council, approval of the modifications would not be in the public interest. 1. It is relevant to note that Council is not concerned with a number of minor modifications proposed by the applicant including façade changes to levels two, three and four and at the roof level, and internal reconfiguration to apartments on levels two, three and four. 2. In its Statement of Facts and Contentions, Council notes that the legislation and planning controls relevant to the Court's consideration includes the EPA Act, the Environmental Planning and Assessment Regulation 2000 (NSW), Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005, State Environmental Planning Policy No 65—Design Quality of Residential Apartment Development (NSW) ('SEPP 65'), the Apartment Design Guide 2015 ('ADG 2015'), Sydney Local Environmental Plan 2012 ('SLEP'), and Sydney Development Control Plan 2012 ('SDCP'). 3. As noted above, in its Statements of Facts and Contentions in Reply, the applicant raises additional 'contentions', with numerous 'particulars', in support of the application. These comprise, inter alia, submissions to the effect that the modifications helped better achieve the zone objectives, the aims of various planning instruments and policies including the SLEP, SEPP 65, ADG 2015, and SDCP. Some of these submissions will be canvassed further below, particularly as they relate to the findings of the expert joint report, but many do not warrant close forensic examination as they are not material to the consideration of the modification applications. 4. It is common ground that the proposal is permissible within the B4 – Mixed Use Zone, that, at approximately 19 metres high, it is below the maximum height standard of 22 metres under cl 4.3 of the SLEP and that it is within the floor space ratio development standard in cl 4.4 of the SLEP. Further, it is agreed that the site is not a listed heritage item and not located in a conservation area. However, the Ultimo Conservation Area adjoins the north of the site and a row of terraces proximate to the south west of the site, being numbers 20 – 36 William Henry Street, is listed as a heritage item. 5. Despite the compliance with a number of the development standards, Council notes that the relevant locality statement in the SDCP requires, as a principle, that development respond and complement heritage items and contributory dwellings within heritage conservation areas and that the height of buildings is to respect and complement existing buildings that contribute to the area's character in terms of scale, elevation, detail, proportions, and materials. Submissions 1. During submissions, it became clear that the primary issue in these proceedings is the matter of bulk and scale. Council submitted that the effect of the modifications is to make the building unreasonably dominant in the streetscape. Ms J McKelvey, counsel for Council, submitted that as there are no numerical non-compliances, it is primarily an issue of merit and described the case as one of impression, the question to be asked being "what does it look like and is the effect acceptable?" 2. In essence, the same position was adopted by Ms S Duggan, senior counsel, for the applicant, who submitted that the relevant statutory instruments, although instructive, cannot be determinative in this case in the sense that no firm numerical standards are in issue with respect to the modifications. With respect to building height and floor space ratio, the building as approved is within the maximum range prescribed by the SLEP, and will remain so if the modification applications receive consent. Although counsel for the applicant conceded that there is no entitlement to the statutory maxima, she submitted that the planning controls are instructive insofar as they provide insight into the kind of development that is considered suitable for the site. 3. The overshadowing issue largely fell away during the hearing. During the joint conference of experts, it was agreed that a proposed pergola structure above the additional elements on levels five and six would be removed. This had the consequence of ameliorating a number of Council's overshadowing concerns. The one remaining overshadowing issue involved the terrace house at 36 William Henry Street. The expert consensus was that for fifteen minutes per day, an additional shadow of a size of approximately four metres by one metre would affect the rear yard of the property. The applicant and Council agreed that this was a minor impact, but Council submitted that it was nevertheless an avoidable impact which resulted from what was, in Council's submission, the unacceptable increase in the building's bulk and scale. 4. With respect to bulk and scale, Council submitted that it is proper to take into account, as part of the public interest criterion, the variation request made pursuant to cl 4.6 of the SLEP which was granted to the proposal in the previous proceedings allowing for extra height and bulk along the Harris Street frontage. There was some suggestion by the resident objectors that the variation request was granted in part as a trade-off for the 4 metre setback at levels five and six which is sought to be altered in the current modification applications. However, counsel for the applicant submitted that there are scant references in the clause 4.6 variation request to Bulwara Road, and no mention of a compromise along the lines of which the residents alluded. Similarly, the applicant submitted that the judgment of Commissioner O'Neill assessed the building as a whole to have an acceptable impact, and did not expressly consider the setbacks on Bulwara Road a trade-off for the additional bulk on Harris Street. 5. The applicant made reference to the photomontages that were attached to the expert joint report, submitting that these were prepared by the applicant to show the perceived impact of the changes from their "worst" – that is, most noticeable – viewpoint. Counsel for the applicant observed that in order to perceive the most significant impact of the changes, a person would have to walk down Bulwara Street, stop in front of one of the vertical elements, and look up; the added height not being within the ordinary field of vision of a person traversing the street. Additionally, counsel for the applicant observed that the north to south view will only ever be viewed by pedestrians as vehicular traffic flows from the other (southern) direction and that from each end of the street the impact will be relatively minimal. Counsel further submitted that the characterisation that a pedestrian would feel "hemmed in", which was expressed during the hearing by Ms Cronin, the urban designer engaged by Council, was not supportable having regard to the context and design of the development. 6. Council submitted that the effect of the modification applications is to amplify the visual effect of what is already a large building in the context of the streetscape such that it would become an unacceptable impact. Council emphasised that the effect of its submission was not that any extra bulk on the building would make it unacceptable, but that this bulk was positioned in an obvious place on the building and a viewer would perceive the size of the development to be anomalous. In Council's submission, a building of an anomalous size is antipathetic to the aims of consistency highlighted in the guidelines. 7. The applicant submitted that a change, or indeed an anomaly, is not sufficient grounds in itself to warrant a refusal. Rather, the question is whether there is an unacceptable change. The applicant additionally submitted that the architect has used skill to minimise the impact of any perceptible change. Conversely, Council submitted that irrespective of whether the effects were ameliorated to some extent, the impacts of the modifications remained unacceptable. Resident objections 1. As noted above, the local resident opposition was extensive and to a large extent reflected the primary issues raised by Council. However, there was an emphasis upon the past conduct of the applicant and the manner in which the development has progressed over a number of years. Without any disrespect to those objectors who provided evidence, I do not record all the individual concerns save to note that I have considered the detailed material from the objectors including the written submissions received in response to the notifications, and the further oral and documentary material provided recording the oral evidence given onsite. 2. In particular, as noted earlier, there was concern that the "in filling" of the four metre setback fronting Bulwara Road at levels five and six was in contravention of an agreement or trade-off for extra building mass that had been permitted on Harris Street during consideration by both the Court and Council on earlier occasions. 3. The enduring concern of the residents including those representing Ultimo Village Voice, the Pyrmont Action Group, and certain residents of Burlinson Gardens, as well as the Friends of Ultimo Network, is that the applicant was seeking to "claw back" floor space which had been required to be forsaken in earlier applications. Consideration 1. The matters before the Court require, primarily, consideration as to whether the modifications relate to substantially the same development as the development for which the consent was originally granted. The statutory modification power is both beneficial and facultative. It is not suggested, nor could it be, that the modifications proposed are not substantially the same development as the development for which the consent was originally granted. 2. The primary issue in these proceedings relates to bulk and scale. However, as overshadowing and public interest are raised both in Council's contentions and reflected in many of the objectors' submissions, I shall address the primary contentions as well as a number of the further matters raised by the experts and submissions. 3. In relation to overshadowing, the further material provided by the applicant, which was considered by the experts in the joint report, satisfies me that the extent of the additional overshadowing arising from the modifications is relatively insignificant. During the course of the hearing, counsel for Council expressed the view that if overshadowing were the only issue, the proceedings would not have come before the Court. However, it remained Council's contention that the overshadowing was an adverse and avoidable impact occasioned by the building's bulk and scale. 4. Although relevant in the overall consideration of the appropriateness of the modifications, I find that any concern regarding overshadowing is not sufficient on its own to be determinative of the appeals. In this regard, I take into account the compliance with the solar access provisions in the SDCP and whilst I accept Council's position that, despite numerical compliance with the SDCP provisions, the design guidelines of the ADG 2015 provide that overshadowing should be "minimised" and that this could be achieved by maintaining the existing setback. Given the extent of the overshadowing caused by modifications, I do not find the possible breach of this principle compelling. 5. In relation to bulk and scale, I accept, as I must, that the additional floor space does not exceed the permitted floor space ratio for the development and also that the experts agreed that the additions proposed to the building envelope do not increase the maximum height in storeys of the development as approved as part of the Stage 1 and Stage 2 development consents, and further, that the proposed additions, measuring up to 19 metres in height, are located below the "maximum height of buildings" development standard of 22 metres pursuant to cl 4.3 of the SLEP. I also note that despite some commentary in the various submissions received from the objectors, there is no aspect of the current proposal which raises concerns in relation to heritage. 6. Mr Cirillo and Mr Dickson, for the applicant, opined that the modifications are consistent with Principle 6 (Amenity) of the Design Quality Principles in Sch 1 of SEPP 65 in that there is an achievement of good amenity by providing additional bedrooms and apartment floor area and that the changes contribute to the positive living environment and future occupants' wellbeing. I note that Council does not take issue with, or oppose, the internal configurations and does not suggest that the expansion of the units, even if there was some amenity benefit, are matters of relevance to my consideration of the appeals. 7. Council referred to the aims of the SLEP, in particular cl 1.2(2)(j), which seeks to achieve high quality urban design by ensuring that new development exhibits design excellence and reflects the existing or desired future character of a particular locality. 8. The applicant's experts, Mr Cirillo and Mr Dickson, opined that the modifications achieve a high quality urban form, exhibit design excellence, and reflect the existing and desired future character of the locality. Mr Dickson in particular, said that the modifications achieve design excellence because of the sympathy of the existing neighbourhood character and cited the fact that the horizontal element between the third and fourth storeys continues an appropriate line of the terrace houses adjoining the subject site to the north and also that the proposed additions result in only "minor" additional bulk and scale. The applicant's experts further opined that the street level frontage height along Bulwara Road is consistent with the existing and future neighbourhood character and that, from an urban design perspective, the modifications do not diminish or detract from the design quality. They asked the Court to consider the principles set out in Sch 1 of SEPP 65 which relate primarily to context, neighbourhood character, built form and scale, as well as density, sustainability, amenity, and landscape. In particular, Mr Dickson raised the "new vertical landscape treatment on the north-facing exterior wall" which he said will minimise the visual impact of the modifications and create visual interest along Bulwara Road particularly when considering the view from the north. 9. Conversely, Ms Cronin and Mr Zabell opined that, contrary to Principle 6 (Amenity) of SEPP 65, the overshadowing impact, at least to the neighbouring dwellings, does not achieve external amenity nor do the modifications exhibit design excellence or reflect the existing or desired future character of the locality. Ms Cronin opined that the increase in street frontage height from four to six storeys does not respond to the predominant existing street frontage height in the immediate context which is between two and four storeys. This concern was reflected by Mr Zabell who stated that the proposed wall height does not "respect the scale and character in the vicinity" and referred to the comments of Commissioner O'Neill in Auswin TWT Development Pty Ltd v Council of the City of Sydney [2015] NSWLEC 1273 at [30]. 10. Each of the experts referred to the instruments, in particular the various clauses of SLEP, SEPP 65, and SDCP (in particular cl 4.2.1.1) regarding maximum street frontage height being consistent with adjacent buildings. 11. Whilst there is a question of some nicety as to the manner in which the provisions of the relevant instruments are to be considered in relation to a modification application, as opposed to a primary application for development consent, it is clear that certain clauses of the SLEP require consideration of design excellence including whether the form and external appearance of the proposal, heritage issues and streetscape constraints, bulk and massing and street frontage heights are appropriate. Despite this, I find that the application of the principles and guidelines in the various instruments referred to above must be considered specifically in relation to the precise modifications now sought. The Court must accept that the development which is presently the subject of the consent (and which is sought to be modified) was, at least at the time that consent was granted (and further consents to the modifications and the like were considered), an acceptable development. 12. Seen in this light, for the reasons that follow, I consider that the consequences of the modifications, being primarily the relatively minor increase in overshadowing and, more relevantly, the likely perception of bulk, are not such that they, on their own, warrant refusal. 13. I accept the position of the applicant that the most noticeable impact will be the northern face of the vertical wall at levels five and six. I find that this will be observed in the north to south view primarily by pedestrians travelling in a southerly direction. Whilst there is dispute in relation to whether the various changes will fall within an observer's "cone of vision", I note the applicant's submission that to notice the wall would require the pedestrian to "look up". Although this is a natural instinct, I take into account that there is already, as approved, a significant building of some four and more storeys which is, or will be, obviously visible to any pedestrian and that, to the extent that there will be a noticeable further (south-facing) wall, it will appear not significantly different to that which will be already visible. 14. I have considered the likely views of the north-facing wall from the vantage points considered by the experts in oral evidence including: first, from the community centre immediately to the south of the subject site; second, from the heritage terraces in the south-west corner of Bulwara Road and William Henry Street; third, from the terraces to the immediate north of the subject site; and fourth, from Burlinson Gardens, the residential flat building directly across the road from the subject site. 15. Accepting what I believe to be common ground between the experts that the photomontages in the expert report showed the "worst case" experience (that is the pedestrian traffic heading south), I find that despite the somewhat stark depiction of the extension of the south-facing vertical wall that appears in the photomontages (which are necessarily uncoloured), the wall will be softened by the proposed introduction of landscaping on stainless steel wires which, according to the plans, has been "introduced to the north side of [the] wall to reduce visual impact on Bulwara streetscape". Furthermore, I accept the evidence of Mr Dickson that, if there was a perceived concern, which he does not accept, in relation to the southern-face of the wall, the "green wall" landscaping is an acceptable response. I note that there is no issue regarding the maintenance of the "green wall" raised by Council. In addition, the wall despite the proposed landscaping will be in a "face brick" finish. 16. Whilst Council submitted that the effect of the modifications is to amplify the visual effect of what is already a large building, I repeat my finding above that I must accept, as a starting point, that the development which has been approved is to be considered as acceptable in an environmental sense. The question then is whether the modifications amplify the visual effect of what is already a large building in the context of the streetscape so that it becomes an unacceptable impact. I find that whilst there will be some extra bulk and that, whilst it will be able to be perceived, and will be perceived, primarily by pedestrian traffic heading south, the effect is not an unacceptable change. 17. Despite concerns expressed by Ms Cronin as to the likely "loss of the view to the sky", which she described in the evidence as "decreased exposure to the sky" – again considered from the "worst" location – I find that the "loss", if it can be so described, is not of such significance on its own, or in combination with the other concerns, as to warrant refusal of the modifications. 18. I have been directed to and considered the various planning instruments in particular the Ultimo locality statement in the SDCP where it provides, at cl 2.12.3, amongst other things, that changes to the built form are to respect the scale and character in the vicinity including the street scale, proportions and rhythms of existing buildings and materials. In this light, I have considered the evidence of Council's witnesses as well as submissions made by Ms McKelvey, to the effect that the controls require consistency in terms of street frontages and that the modifications do not respect the scale and character in the vicinity including the street scale, as required in the locality statement. In particular, Ms Cronin expressed the view that the predominant street frontage height of the adjacent buildings to the north of the site is three storeys and, as such, the proposal is unacceptable because there is no acceptable transition. Similarly, to the south of the site, Ms Cronin said that the street frontage height is a four-storey equivalent height (being the existing Ultimo Community Centre) and in the circumstances the height of the proposal and more particularly, the street frontage height, does not match. In her view, the proposal is therefore not an acceptable response whereas the approved upper levels' setback at level five is an acceptable response and the removal of this setback does not respond to the instruments. 19. Although the modifications will change the relationship (in relation to setbacks) with the Ultimo Community Centre to the immediate south of the site, I do not consider that this is a determinative matter given that the modifications must be seen against, or in the context of, the presently approved building. Further, I find that the relationship with the terraces to the north of the proposal has been appropriately considered and the relationship to the Ultimo Community Centre, which is of a different architectural character, is also appropriately addressed. 20. To the extent that Council raises concerns about the consistency of heights of street frontages such that the modifications disrupt the rhythm that was otherwise found to be acceptable in the earlier approval, I find that any change in the rhythm of the street in relation to the manner in which the proposal presents to the other elements of the street is acceptable. Again, whilst there will be a noticeable increase in the bulk, it is to be seen in the context of an already approved building that will be obviously larger than its surroundings. 21. Whilst I accept that the approved building itself could be considered as imposing, as described in the submissions, that of itself is not a criticism given that it complies, at least in a numerical sense, with the statutory controls. Whilst not presently determinative, the statutory controls do reflect the likely future character of an area. 22. Whilst I accept that there is no entitlement to the maxima otherwise provided for in the numerical standards in statutory planning instruments, the question before the Court is confined to the relationship between that which is proposed by the current modifications compared to that which has been approved. 23. In relation to the objector concerns, I understand and accept the submission made by Ms McKelvey that there is an obvious sense of frustration in relation to the development process of this site. Whilst I accept that consistency in the application of instruments is a matter of public interest, as I noted above, the ability to modify a development consent pursuant to the EPA Act must be seen as both beneficial and facultative. Despite this, I accept that the residents who gave evidence properly understood that that which is before the Court is the modification and their submissions did not present an opportunity for review or criticism of the earlier approval. 24. The resident objections were both considered and understandable. To the extent that there was a further enduring concern of the objectors, as noted in par [33] above, that the applicant was seeking to "claw back" floor space which had otherwise been forsaken, I have considered the earlier judgment of Commissioner O'Neill, where the written request made pursuant to cl 4.6 of the SLEP was based upon the fact that the mass of the overall development was appropriately distributed over the whole site and that the increase of the building envelope fronting Harris Street was appropriate. 25. Whilst it is clear that the decision of Commissioner O'Neill accepted the expert evidence before her that the four metre setback of the upper levels fronting Bulwara was, at that time, an appropriate form (in a building envelope sense), I do not consider this to be determinative for the following reasons. First, the matter before Commissioner O'Neill was a staged application in relation to a building envelope. Subsequent to that decision, a design competition was held which ultimately led to the winning entry becoming the basis of a further more detailed development application being made. Although I do not necessarily accept that the stage 1 building envelope could be called a "box", as applicant's counsel described it, it is true that, in the sense that it did little more than fix the "external extremities" of the building, the proposal which is now before the Court is much more "fine grained" than the approved envelope consent. 26. Second, I accept the evidence of the applicant's experts that, in the design presently before the Court, the architect has adopted various treatments that, to the extent that there is capacity to perceive a level of change, the effect of the change caused by the modifications has been diminished by the architectural treatment in relation to vertical elements, the finishes, the glass balustrading, the green wall treatment on the northern facing wall of the proposed modifications, and various other architectural devices. 27. Third, I also accept that although the further modified development "fills in" to some extent what would otherwise be a void, it is not being "filled-in" with a solid edifice. It is evident from the plans, elevations, and photomontages, that there is detailed articulation and architectural treatment which I consider will prevent the proposed extra bulk simply presenting as a solid façade. Conclusion 1. For the reasons stated above, I find that the appeals should be upheld and accordingly I propose to grant consent to the modification applications subject to conditions. Orders 1. In proceedings 2017//00325754: 1. The appeal is upheld. 2. Modification Application, D/2016/367/C, lodged on 16 August 2017 is approved subject to the conditions in Appendix 'A'. 1. In proceedings 2017/00325755: 1. The appeal is upheld. 2. Modification Application, D/2014/1147/B, lodged on 16 August 2017 is approved subject to the conditions in Appendix 'B'. ********** Appendix A - Final Conditions Stage 2 (585 KB, pdf) Appendix B - Final Conditions Stage 1 (152 KB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 February 2018