Land and Environment Court New South Wales Medium Neutral Citation: Gurr v Waverley Council [2019] NSWLEC 1548 Hearing dates: 24-25 October 2019 Date of orders: 13 November 2019 Decision date: 13 November 2019 Jurisdiction: Class 1 Before: Horton C Decision: Proceedings 2018/352509 The Court orders: (1) The appeal is dismissed. (2) Development consent for modification application seeking to modify conditions that formed part of Development Consent No. LD12/1999 is refused. (3) All exhibits are returned, except for Exhibits E, F, 7 and 9. Proceedings 2019/155188 The Court orders: (1) The appeal is dismissed. (2) Development consent for Development Application DA-448/2018 for works associated with a trafficable roof terrace and glass balustrade is refused. (3) All exhibits are returned, except for Exhibits E, F, 7 and 9. Catchwords: DEVELOPMENT APPEAL – modification of consent – exceedance of height – privacy impacts – view loss Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No 65 – Design Quality in Residential Apartment Development Waverley Local Environmental Plan 2012 Cases Cited: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 Meriton v Sydney City Council (2004) 140 LGERA 144; [2004] NSWLEC 313 Steele v Waverley Council [2018] NSWLEC 1659 Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 Texts Cited: Apartment Design Guide Waverley Development Control Plan 2012 (Amendment No. 5) Waverley Development Control Plan 2012 (Amendment No. 6) Category: Principal judgment Parties: Gregory Gurr (Applicant) Waverley Council (Respondent) Representation: Counsel: D Briggs (Solicitor) (Applicant) M Hudson (Solicitor) (Respondent) Solicitors: D.G Briggs and Associates (Applicant) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2018/352509; 2019/155188 Publication restriction: No Judgment 1. COMMISSIONER: Mr Gregory Gurr is the owner of Apartment 3 at 467 Bronte Road, Bronte. He brings an appeal under s 4.55 of the Environmental Planning and Assessment Act 1979 ("EPA Act") against the deemed refusal by Waverley Council (the Respondent) of modification application seeking to modify conditions that formed part of Development Consent No. LD12/1999, referred to by the parties as Appeal 1. 2. In the alternative, Mr Gurr appeals the deemed refusal by the Respondent of Development Application DA-448/2018 under s 8.7 of the EPA Act for works associated with a trafficable roof terrace and glass balustrade, referred to by the parties as Appeal 2. 3. As Appeal 1 relates to consents previously granted, it is useful to first set out the agreed chronology as it appears in the Respondent's Bundle, marked 'Exhibit 4'. Evolution of appeals 1. The site is identified behind Tab 4, Exhibit 4 as Lot 11 of SP63729 which includes a top floor dwelling and roof space in a mixed use development on the southern side of Bronte Road, fronting Bronte Park. 2. Consent for a mixed use development comprising retail on ground floor and 3 x 3 bedroom apartments was granted by the Respondent on 20 April 1999 (Exhibit 4, Tab 3). 3. A strata plan was registered on 2 November 2000 and it is commonly agreed between the parties that the roof is part of the entitlement of Lot 11, being Apartment 3 (Exhibit 4, Tab 4), and is subject to easements granting access to the owners corporation for maintenance of plant located on the roof. 4. Modification of the consent at [5] was granted by the Respondent in May 2000 (Exhibit 4, Tab 5). Relevant to Appeal 1, the modification of development consent contained the following additional conditions: "34 That the entire roof area of the building not be used for recreational purposes 35 That there be no balustrading erected or attached to the roof area of the building." 1. In July 2001, the Respondent received a development application seeking consent to erect a balustrade on the roof of the existing building and use part of the roof area enclosed by the balustrade for outdoor recreational purposes and for maintenance of plant and equipment on the roof. 2. Consent was not granted, and an appeal was lodged with the Land and Environment Court. A conciliation conference pursuant to s 34 of the Land and Environment Court Act 1979 ("LEC Act") was held on site on 27 November 2001, and the appeal is recorded as dismissed. 3. The Respondent subsequently acted on a concern for public safety and ordered on 7 August 2002 that the building owner (at Exhibit 4, Tab 6): "1. Provide to the roof area 1m around the plant, a stainless steel handrail with 75mm support posts and top rail with stainless steel wiring having a maximum of 125mm gaps between. The handrail is to be 1m high and constructed so as to comply with Section D of the Building Code of Australia. 2. Remove the timber handrail from the surrounds of the roof area" 1. It is agreed between the parties that the balustrade was subsequently installed in accordance with the order, the alignment of which is shown behind Tab 6 in Exhibit 4. The balustrade has since been removed and I am told by Mr Briggs for the Applicant that the strata body is currently seeking to renew the waterproofing to the roof, and awaiting the outcome of the appeals before proceeding with works. 2. The Applicant lodged the Development Application the subject of Appeal 1 in October 2018, and was refused. 3. The Applicant lodged Development Application DA-448/2018, the subject of Appeal 2 on 4 December 2018, and was refused. 4. The dispute centres on the access and use of the trafficable roof at the top of the building at 467 Bronte Road. In general terms, the roof is divided into a clear and open concrete slab towards the north of the site. A number of air conditioning units are located on the concrete slab located to the south of the site, which is set down a few steps. In the centre is a modest lift overrun, access stairs and a number of exhaust flues. 5. The Applicant seeks consent for an area on the roof that is for the exclusive recreational use of the occupants and guests of Apartment 3, and submits that a continuous balustrade on the roof that is required for maintenance access to plant and equipment should be extended to the north to provide an enclosure for this purpose. 6. As is the Court's usual practice, the hearing commenced with an onsite view at which three residents made public submissions. While notes of the submissions were taken, agreed and provided to the Court after I reserved my judgment, I note that in general terms, issues that were consistent in those submissions relate to the potential for visual and acoustic impacts on properties located immediately behind the subject site, at Nos 17, 15 and 11 Pacific Street. 7. Residents spoke of the role played by the north-easterly wind in projecting sound towards the properties in Pacific Street, and the effect of the 'natural amphitheatre' which is said to exaggerate sound from the north. 8. The Court, in the company of the parties and experts, also visited the roof top of the building on the subject site, and the apartment on Level 3, including the terrace or balcony fronting Bronte Road, and the rear terrace or balcony located off a bedroom. 9. From the roof top of the building, the parties identified a number of terraces and balconies in the vicinity including those at: 491 Bronte Road, 481-483 Bronte Road, 471 Bronte Road, 469 Bronte Road, 457 Bronte Road, and 455B Bronte Road. 10. The Court was assisted by expert evidence in the form of a report prepared by Mr Graham Sheffers on BCA compliance on behalf of the Applicant, marked 'Exhibit B'. Mr Sheffers provided his evidence on site, to the effect that given access to the roof is via a conventional hinged door in the Level 3 lift lobby, it is appropriate to define the access to be 'general access', in contrast to access that might otherwise be provided by a ladder and hatch, for example, which serves to restrict access. As a result, a continuous barrier such as a balustrade is preferable to a roof access system that would rely on a harness. 11. Mr Gauld prepared an expert report on behalf of the Applicant in relation to Acoustics (Exhibit C). The Respondent did not contest the acoustic report, but relies on resident submissions as to the behaviour of noise in the locality. 12. As the contentions relate primarily to town planning matters, a joint expert report was prepared by Mr Kim Burrell, for the Applicant, and Mr Stuart McDonald, for the Respondent marked 'Exhibit 3', and who both assisted the Court in providing oral evidence. Approach to Appeal 1 and Appeal 2 1. The Respondent submits that it would assist the Court to consider the Appeals in reverse order as Appeal 2, the development application, relies on a written request pursuant to cl 4.6 of the Waverley Local Environmental Plan 2012 ("WLEP") and so requires consideration of a jurisdictional pre-requisite. 2. The Applicant submits that I should first consider Appeal 1, being the modification application given that, should I be minded to grant consent, the Court can then dispose of the matter in a manner that is just, quick and cheap and without need to consider Appeal 2. 3. Given the evolution of the appeals, I agree with the Applicant that, while the appeals are joined, I should consider them in their numbered sequence. 4. The parties are agreed that the Waverley Development Control Plan 2012 (Amendment No.5) ("Amendment 5") applies to the modification application (Appeal 1), and the Waverley Development Control Plan 2012 (Amendment No.6) ("Amendment 6") applies to the development application (Appeal 2). 5. In Amendments 5 and 6, the substance of the provisions set out in the WDCP for Views and View Sharing, and Visual Privacy and Security are similar but not identical. Mr Briggs for the Applicant prepared a submission to assist the Court in tracking the changes between Amendment No.5 and Amendment No.6. His submission equates Section 2.17 (Amendment 5) and Section 3.14 (Amendment 6) in relation to Views and View Sharing, and equates Section 2.18 (Amendment 5) and Section 3.15 (Amendment 6) in relation to Visual Privacy and Security. 6. For clarity, I will refer to the Parts contained in Amendment 5 in considering Appeal 1, and those parts contained in Amendment 6 should I need to consider Appeal 2. Planning framework 1. The provisions of the WLEP apply to the site, and its aims are in the following terms: (2) The particular aims of this Plan are as follows— (a) to promote and co-ordinate a range of commercial, retail, residential, tourism, entertainment, cultural and community uses to service the local and wider community, (b) to maintain and reinforce Bondi Junction as the primary commercial and cultural centre in Sydney's eastern suburbs, (c) to provide for a range of residential densities and range of housing types to meet the changing housing needs of the community, (d) to provide an appropriate transition in building scale around the edge of the commercial centres to protect the amenity of surrounding residential areas, (e) to protect, maintain and accommodate a range of open space uses, recreational opportunities, community facilities and services available to the community, (f) to enhance and preserve the natural environment through appropriate planning, protecting the integrity of natural systems and by protecting existing trees, (g) to identify and conserve the cultural, environmental, natural, aesthetic, social and built heritage of Waverley. 1. The site is located within the B1 Neighbourhood Centre pursuant to the WLEP. The objectives of the zone are as follows: • To provide a range of small-scale retail, business and community uses that serve the needs of people who live or work in the surrounding neighbourhood. • To ensure that non-residential uses do not result in adverse impacts on the amenity of existing and future residential premises having regard to building design, operation and activities, transport, traffic generation and the car parking capacity of local roads. • To strengthen the viability of Waverley's existing business centres as places of vitality for investment, employment and cultural activity. • To provide retail facilities and business services for the local community commensurate with the centre's role in the local retail hierarchy. 1. The southern boundary of the site adjoins the R2 Low Density Residential zone which the Applicant considers to be the origin of the resident submissions as some 'tension' can be expected at the interface between zones. 2. As the building currently exceeds the permissible height for the site, the objectives of cl 4.3 Height of buildings are relevant, and provide: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, (b) to increase development capacity within the Bondi Junction Centre to accommodate future retail and commercial floor space growth, (c) to accommodate taller buildings on land in Zone B3 Commercial Core of the Bondi Junction Centre and provide an appropriate transition in building heights surrounding that land, (d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space. 1. Section C2.17 of Amendment 5 provides guidance on Views and View Sharing, the objectives of which are in the following terms: "(a) To ensure that views are shared, providing equitable access to views from dwellings. (b) To protect and enhance views from streets and other public spaces. (c) To ensure that the desire for view does not conflict with privacy." 1. Section C2.18 of Amendment 5 provides guidance on Visual Privacy and Security. Of particular relevance are the provisions found at C2.18(g) which are in the following terms: "Roof tops are to be non-trafficable and not capable of being used as roof terraces or as entertainment areas, except in the following circumstances: (i) The predominant residential character in the vicinity of the site includes roof terraces; (ii) They will not result in unreasonable amenity impacts such as overlooking and loss of privacy and acceptable noise; (iii) They should not exceed 15m² in area; and (iv) They satisfy the considerations of the LEC "Super Studio" Planning Principle. (v) They are provided for casual and infrequent activity and not as an extension of private open space or entertaining areas. (vi) Any access must be provided within the envelope of the main building and there are to be no access hoods or lift overruns proposed above the main roof level. Operable skylights and hydraulic lifts are acceptable where they finish generally flush with the roof level." 1. Section C3.14 of Amendment 6 provides guidance on Views and View Sharing, in terms that are similar to Section 2.17 of Amendment 5. 2. Section C3.15 of Amendment 6 provides guidance on Visual Privacy and Security, in terms that are similar to Section 2.18 of Amendment 5. Planning evidence 1. As stated at [24], in the event I uphold Appeal 1, I do not need to consider Appeal 2. In the event I dismiss Appeal 1, I must consider the written request from the Applicant made pursuant to cl 4.6 of the WLEP to justify the contravention of the height of buildings development standard as a jurisdictional pre-requisite before considering the merits of the development application underlying Appeal 2. 2. In first considering the modification application (Appeal 1), I propose to address matters in dispute as set out in the joint expert report (Exhibit 3): 1. Privacy Impacts 2. View impacts Privacy Impacts 1. Contention 1 in Appeal 1 states that the proposed development should be refused as the proposed roof top terrace will have unacceptable impact on the acoustic and visual privacy of adjoining residential properties. 2. Section C2.18 of Amendment 5 states, in the chapeau, that: "… Roof top terraces are discouraged in areas outside Dover Heights" 1. To the experts, the statement in the chapeau is either evidence of the controls seeking to prohibit roof top terraces, or its purpose is advisory and allows roof top terraces to be considered albeit with heightened sensitivity, being ultimately a question of merit. 2. In the joint report, Mr Burrell initially opined that the provisions set out in Section C2.18(g) do not apply as they relate only to new buildings. However in his oral evidence, Mr Burrell conceded that view to be incorrect and ultimately the experts concurred that the provisions found at Section 2.18(g) set out the controls for roof top terraces. 3. However, the experts remained in dispute as to whether those terraces and balconies at [19] meet the definition of a 'roof top terrace'. Mr Burrell is of the view that any space forming a roof over a space below may be described as a roof top terrace and spaces answering to this description are visible from the site, and so demonstrate that roof top terraces are evident and predominate. As Mr Briggs puts it, with only 8 properties in the B1 zone, if two properties can be said to already have roof top terraces, amounting to 25% of the properties in the zone, roof top terraces can be said to predominate. 4. Mr McDonald considers it essential to the definition of a roof top terrace that it be at the top of the building, as is the case in this matter, and so it is a roof top terrace which is discouraged, and to which the provisions at Section 2.18(g) apply. 5. In his oral evidence, Mr Burrell accepts that the roof of the building on the site is exposed and is not protected or obscured by another structure as in the case in other examples. 6. The location of the proposed roof top terrace, being on the roof, is not internally connected to Apartment 3 which, according to Mr Burrell, will result in it being used less frequently. There is no bathroom, BBQ or water point, and it is proposed that a condition be imposed to limit the maximum of 14 people and the hours of use. Taken together, these factors have the effect of mitigating the privacy impacts on adjoining properties. 7. In the alternative, Mr McDonald considers it possible that a recreational space that is not contiguous with the main living areas of Apartment 3 could intensify its use as activity on the roof can occur separately from any occupants undertaking any other activity in Apartment 3. Occupants of the roof terrace could bring with them eskies and other things which would provide all the amenities needed for prolonged use. 8. By contrast, the existing terrace that is contiguous with Apartment 3 is, in Mr McDonald's opinion, generously-sized with a panoramic view and is well connected to the space inside which can be opened to function as an extension of the living area. 9. The Applicant suggests that the balustrade to the proposed roof top terrace acts as screening to maintain the privacy of those using the roof top terrace. For this reason, it is shown on the architectural plans (Exhibit D) as 1500mm high in obscure glass that I am advised is frameless. The relevance of this is that anyone seated on the terrace is likely to be fully concealed by the glazed screening, however the experts agree that anyone standing will be visible and, as the screening does not have an acoustic function, will also be heard. 10. As stated earlier, the Respondent does not contest the acoustic report prepared by Mr Gauld and instead relies on resident submissions as to the effect of sound in the Bronte 'basin' and questions whether the assumptions informing the acoustic report found on page 14 are reliable and subject to change based on the type of function or activity, number of people, and how those people are configured. 11. Mr McDonald considers privacy to be a two-way street, and has concerns as to the potential for overlooking into Pacific Street properties, including a direct sightline into the master bedroom of No 11 Pacific Street ("No 11") as shown in photos relied on in his oral evidence and later marked as 'Exhibit 9'. 12. However, Mr Burrell maintains that as the floor levels in the properties of the resident objectors on Pacific Street are higher, the potential for adverse privacy impacts exists in the overlooking from the Pacific Street properties, and not into them as suggested by their submissions, and it is for this reason that the privacy of the occupants of the proposed terrace requires screening. 13. While it is agreed that the Apartment Design Guide (ADG), adjunct to the State Environmental Planning Policy No 65 – Design Quality in Residential Apartment Development, is not applicable, Mr Burrell considers it helpful that the ADG would require a building separation of 12m to provide visual privacy between apartment buildings. This is relevant as the site analysis plan, A01 Rev B (Exhibit D), measures a distance of between 24.2m and 34m between the proposed terrace and properties at Nos 17, 15 and 13 Pacific Street. It was later agreed that the distance between the proposed terrace and No 11 is in the order of 36m-38m. 14. The Applicant also relies on the planning principle set out in Meriton v Sydney City Council (2004) 140 LGERA 144; [2004] NSWLEC 313 ("Meriton v Sydney City Council") by Roseth SC at [46] to the effect that the ease with which privacy can be protected is inversely proportional to the density of development. 15. Mr McDonald is of the view that the absence of No 11 from the site analysis plan is evidence that the impact on that property has not been considered, however the Applicant maintains that visual separation is well in excess of the standard found in the ADG. Nevertheless, options contained at Attachment 3 of Exhibit 3 provide alternative alignments for the balustrade, including an additional 500mm setback to the eastern boundary. 16. In Mr McDonald's view, any occupation of the roof is likely to cause an adverse visual impact to surrounding properties, and that is not improved by any of the options shown. 17. The experts refer to Section C2.18(g)(iv) in considering whether the proposed modification to the consent satisfies the considerations contained in the planning principle set out in Super Studio v Waverley Council (2004) 133 LGERA 363; [2004] NSWLEC 91 ("Superstudio"). 18. In the joint report, Mr Burrell states his firm view that there is no unacceptable impact arising from the proposal as the roof top terrace is not directly accessible from the internal living areas. However, to the extent that any impact might arise, it would be minor or negligible in his opinion as so satisfies the tests set out in Superstudio. 19. Mr McDonald refers to the first principle advanced in Superstudio, at [5], to the effect that "the acceptability of an impact depends not only on the extent of the impact but also on the reasonableness of, and necessity for, the development that causes it…". With an existing terrace on Level 3 adjoining an internal living area to provide high quality private open space from which the panorama of the outlook can be enjoyed, Mr McDonald considers the proposal does not satisfy Section C2.18(g)(iv). 20. Similarly, Mr McDonald is of the view that the proposal fails to satisfy the third principle advanced in Superstudio, at [7], which relates to the extent to which an approval for this application would be used as a precedent in favour of approving other applications for roof terraces. As the proposal is a new element that adds to the height of the building across its full width, it is Mr McDonald's opinion that the grant of consent would act as a precedent in the area. View sharing 1. Section C2.17 Views and view sharing in Amendment 5 advises that it should be read in conjunction with Tenacity Consulting v Waringah (2004) 134 LGERA 23; [2004] NSWLEC 140 ("Tenacity"), and the experts' evidence largely adopted the structure of the four tests set out at [26]-[29] of Tenacity by Roseth SC. Assessment of views to be affected 1. The parties agree that the views that are affected are from properties on Pacific Street, and include the loss of a view to the surf club and its flag, part of the beach sand and a portion of the sandstone shelf and cliff at the northern end of Bronte Beach. It is also agreed that in general terms, those properties will continue to enjoy unaffected wide views of the beach, water, horizon, headland and the like, but Mr McDonald notes that access to that view requires an occupant to step out onto a balcony. 2. To Mr Burrell, much of the view that is affected, is replicated in the view that is retained above the affected area. That is, with the exception of the surf club and its flag, residents of Pacific Street properties will continue to enjoy a view of the Norfolk pines, topmost portion of the sandstone cliff and the like. In short, the view loss is limited in its area in an otherwise wide panorama that is unaffected. 3. According to Mr Burrell, view loss resulting from the proposal is minor to negligible and may be quantified as around 5% of the total view. In the alternative, Mr McDonald accepts the view is a 'narrower cone' viewed from inside the properties on Pacific Street, but is important and he assesses the view loss to be minor to moderate in its impact. From what part of the property the views are obtained 1. The experts agree that the views are obtained from the primary living areas of the properties on Pacific Street, in a standing and seated position, looking forward in what Mr McDonald describes as a 'narrow cone' from inside. The extent of the impact 1. In the joint report, the experts rely on Attachment 4 for photomontages prepared by the Applicant. During the hearing, additional photomontages were tendered and marked 'Exhibit F' showing the extent of impact that is additional to the view likely to be impacted by restoration of the balustrade the subject of the Council order, at [10]. 2. To Mr McDonald, the extent of the impact is exacerbated by being an exposed location on the roof top, and its use is likely to regularly involve people standing who, for anyone taller than the privacy screen, would be visible above the height of any privacy screen, as would any shade structures such as umbrellas and the like. The reasonableness and necessity of the proposal that is causing the impact 1. As stated at [59], Mr McDonald is of the view that the Applicant currently enjoys panoramic views from a terrace that is the full width of the site and connected to the internal living area of Apartment 3, and so the impact of a further terrace on the roof top of a building that already exceeds the allowable height, resulting in privacy and view impacts on neighbouring properties is not a reasonable proposal. 2. Furthermore, Mr McDonald notes that the size of the proposal exceeds the area of 15m2 as set out in Section C2.18(g)(iii), and as further set out in the concluding paragraph that follows Control (g) which acts as an explanatory note as to the reasons for specifically limiting the size of roof top terraces. 3. Mr Burrell considers the view to be already impacted by the 'clutter' of air conditioning units, exhaust outlets, the lift over run and the like, and regards it as relevant that the view loss occurs at the interface of the R2 Low Density Residential zone on Pacific Street, and the B1 Neighbourhood Centre zone in which the subject site is located. 4. Mr Briggs for the Applicant, in written submissions, maintains that the works are necessary to replace the existing balustrade that he describes as dilapidated. Consideration 1. I accept that the door located in the Level 3 lift lobby provides general access to the trafficable roof of the building, on which a number of air conditioning units and other plant is located. Those units and plant require safe access for maintenance, replacement and the like, and I accept that a balustrade has been identified as the best means of providing such safe access. 2. It is generally agreed that the balustrade will impact the views of residents in the vicinity, and may impose some privacy impacts when maintenance is being undertaken. 3. The question is whether the impact of additional balustrading in the form of frameless, and perhaps toughened and laminated, glass – some of which is noted to be translucent – will impact the privacy and views of residents in the vicinity in a manner that is unreasonable when considered against the Applicant's entitlement to the trafficable roof above his apartment. 4. The additional balustrading proposes to form an enclosure to a roof top terrace that is between 1000mm and 1500mm in height. 5. I agree with Mr McDonald for the reasons set out at [44], that the proposal answers the description of a 'roof top terrace', which is discouraged, in Section C2.18 of Amendment 5, in areas outside Dover Heights. This then requires consideration of the provisions set out at Section 2.18(g)(i)-(vi) which set out exclusions to the 'prohibition' of roof top terraces. 6. I consider the wording of Section C2.18(g)(i) to be relevant in assessing whether the predominant residential character in the vicinity includes roof terraces. As the test is the predominant residential character in the vicinity, and not the zone, I prefer the Respondent's submission that a reasonable assessment would include a sample beyond the eight buildings in the B1 zone, and I accept the figure of 50 buildings which appears in the expert's evidence. Adopting this logic, I accept the Respondent's submission that roof terraces do not predominate in the vicinity. 7. As to whether the site's location at the interface of the B1 Neighbourhood Centre zone, and the R2 Low Density Residential zone should factor in my consideration, I note the objectives of the B1 zone, as set out at [30], are largely related to encouraging non-residential uses, while the source of tension arises from a proposal related to residential use. For this reason, I do not consider the differing objectives of the zones to be a relevant consideration. 8. In considering the amenity impacts at Section 2.18(g)(ii) such as overlooking, privacy and noise, I note the separation distance set out in the ADG did not apply at the time of the modification of consent at [7] and so is not an applicable guide in consideration of Appeal 1. Instead, Section C2.18(d), which was applicable at the time, provides that: "Above ground open spaces must not directly overlook rooms and private landscaped areas of adjoining properties unless screening can mitigate overlooking". 1. The original design of the balconies and terraces in the building for which consent was granted at [5] generally front Bronte Road. They do not overlook rooms and private landscaped areas of adjoining properties. Where there are rear facing balconies, they are at a lower level than the roof top which serves to mitigate overlooking. 2. The roof top terrace would overlook rooms and private landscaped areas of adjoining properties. This would be particularly the case when in a standing position on the proposed terrace, which I consider to be a likely and common form of use of the terrace. Furthermore, as the terrace is at the very top of the building, it allows 360 degree views that would be, in my view, the very experience one seeks when on the proposed terrace. I do not accept the Applicant's position that occupants of the terrace would be solely focused on the beach view, or feel so exposed that they would seek to conceal themselves behind the 1500mm privacy screen, out of sight. 3. There is no dispute that the proposed terrace exceeds the 15m2 preferred by the control at Section C2.18(g)(iii), which the Applicant describes in submissions as providing minimal amenity value. 4. In considering Section 2.18(g)(iv) I prefer Mr McDonald's more detailed analysis of the application of the planning principles in Superstudio, which are consistent with the view held by him in relation to the application of the provisions found at Section C2.18(g) being applicable to development in the area. In arriving at this conclusion, I give particular weight to Mr McDonald's evidence in relation to the first test, which considers the reasonableness and necessity for the development. Apartment 3 already enjoys a substantial terrace that is the full width of the apartment, comprising four large panes of aluminium framed glazing, three of which slide to nest in line with the fourth, providing an almost full opening between living area and balcony. This terrace already has the benefit of the panorama that the Applicant asserts would be the primary focus of anyone on the roof top terrace. 5. I have considered the Applicant's submission in relation to Meriton v Sydney City Council and note the circumstances in this matter relate to a roof top terrace within an existing viewshed, and not the more conventional question, addressed by Roseth SC of visual privacy between apartments which can be moderated by the placement of windows and the like. 6. While the Applicant maintains the proposal is necessary in order to remediate the balustrade erected in response to Council's order at [10] and which is now dilapidated, I note the owners corporation does not require the modification of consent to undertake repair works to this balustrade. I also note the existing balustrade is not consistent with the material or form of balustrade that is the subject of the Council's original order, which provides for stainless steel construction and wired balusters. The original order appears to propose a form of balustrade that would be both more transparent and more durable than the balustrade erected, and that is now in need of repair. 7. In considering the potential view impacts of the proposal, I consider the photomontages at Attachment 4, Exhibit 3 to be the more accurate representation of the proposal than those at Exhibit F which do not depict the full extent of obscure glazing which, by its nature, will obscure the view that is possible to be gained, albeit filtered, through the more open balusters of the existing steel balustrade. 8. Instead, Exhibit F compares a replacement balustrade in steel, being a version of the subject of the council order, against the more solid glass screening proposed, and places emphasis on the difference between the height, and not the comparative transparency of the materials. 9. While I accept the extent of the view lost is minor when considered in the context of the panorama, I also accept Mr McDonald's view that it represents a not insignificant impact given from where the view is obtained, being in a standing position in the living areas of adjoining properties on Pacific Street when looking in a forward direction. It is on this basis that I can accept Mr McDonald's assessment that the view impact can be considered minor to moderate. 10. For the reasons stated above, and considering all of the evidence before me, I cannot conclude that there are grounds to uphold Appeal 1 for the modification application seeking to modify conditions that formed part of Development Consent No. LD12/1999. 11. As stated at [24], I will now consider Appeal 2, which relies on a written request pursuant to cl 4.6 of the WLEP to justify the contravention of the height. 12. The Applicant relies on a written request prepared by Mr Kim Burrell dated 3 December 2018, marked 'Exhibit E'. 13. Clause 4.6 of the WLEP provides the Court with the power to grant development consent to the development even though the development the subject of the development application in Appeal 2 would contravene the development standard found in cl 4.3 of the WLEP, but that power is subject to conditions. 14. As shown by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 ("Initial Action"), for the Court to have the power to grant development consent for a development that contravenes a development standard, cl 4.6(4)(a) requires that the Court, in exercising the functions of the consent authority, be satisfied that: 1. The proposed development will be consistent with the objectives of the particular standard in question (cl 4.6(4)(a)(ii)), and 2. The proposed development will be consistent with the objectives of the zone (cl 4.6(4)(a)(ii)), 3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), and 4. The written request adequately establishes sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b)). 1. The Court must form two positive opinions of satisfaction under cl 4.6(4)(a) to enliven the power of the Court to grant development consent (Initial Action at [14]). I must be satisfied that: 1. the applicant's written request has adequately addressed the matters required to be demonstrated by subcl (3) and; 2. that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objective of the zone in which the development is proposed to be carried out. 1. Clause 4.6(4)(b) also requires that the Court is satisfied that the concurrence of the Secretary has been obtained, noting that the Court has the power under cl 4.6(2) to grant consent to development that contravenes a development standard without obtaining or assuming the concurrence of the Secretary of the Department of Planning and Environment, pursuant to s 39(2) LEC Act but should still consider the matters in cl 4.6(5) of the WLEP (Initial Action at [29]). 2. The written request acknowledges that the development proposed in Appeal 2 exceeds the height of buildings permitted in cl 4.3 of the WLEP, in two ways: 1. The maximum height of the existing building is 12.58m, which exceeds the permitted height of 9m; 2. The proposal involves the installation of privacy screens and balustrades, further increasing the height of the building by 490mm to a total height of 13.07m. 1. The written request seeks to demonstrate that compliance with the development standard is unreasonable or unnecessary as the objectives of the development standard are achieved notwithstanding non-compliance with the standard for the following reasons: 1. The proposed balustrade and privacy screening will increase the height of the building by 490mm, being marginally taller than the existing lift overrun, and do not result in any unreasonable view loss and loss of privacy to neighbours in the immediate vicinity. 2. The proposed structures will not be visible from public places and so the environmental amenity of neighbouring properties and public spaces will be preserved. 3. The proposal is compatible with the height, bulk and scale of existing buildings in the locality, and with the desired future character of the locality. 1. The relevant objectives of cl 4.3 are set out at [32], but are reproduced again here as follows: (a) to establish limits on the overall height of development to preserve the environmental amenity of neighbouring properties and public spaces and, if appropriate, the sharing of views, … (d) to ensure that buildings are compatible with the height, bulk and scale of the desired future character of the locality and positively complement and contribute to the physical definition of the street network and public space. 1. Clause 4.3(a) has, as an element of the objective, to preserve the environmental amenity of neighbouring properties by the limiting of overall height of development. 2. The second element of the objective at cl 4.3(a) is to preserve, if appropriate, the sharing of views. 3. I concur with Commissioner O'Neill in Steele v Waverley Council [2018] NSWLEC 1659 at [30], that it is appropriate to apply the ordinary meaning of the word 'preserve', in the absence of a definition in the WLEP, which is defined by the Macquarie Dictionary as "1. to keep alive or in existence; make lasting. 2. to keep safe from harm or injury; save. 3. to keep up; maintain." 4. In considering the first element of the objective at cl 4.3(a), I am not satisfied that the proposed 1500mm high obscure glass screening, of around 10m in length when western and southern panels are considered, will preserve the environmental amenity of neighbouring properties given the additional height of 490mm above the exceedance of the maximum height permitted by the controls of 9m at the time of the original consent, and today. 5. Furthermore, while I accept that the ADG is a reasonable guide to achieving visual privacy through building separation, the ADG does not consider the maximising effect of an external open space on a roof top having a direct sightline into the primary living areas and private open space of adjoining properties, and vice versa. For this reason, I consider it likely that the environmental amenity of properties on Pacific Street will be further impacted when populated by people who are likely to be standing on the terrace and enjoying the 360 degree view afforded from this exposed location. 6. Additionally, given the exposed location of the roof top terrace, I consider it probable that shade structures such as umbrellas and the like may form a regular part of use of the terrace, which would serve to further extend the potential impact on the environmental amenity of surrounding properties. 7. Finally, the written request asserts that existing views enjoyed from neighbouring properties that will be maintained are generally in an easterly direction. As the view from properties in Pacific Street to the site are generally in a northerly direction, the views said by the written request to be preserved are views across side boundaries, which Tenacity considers to be, in effect, of lesser importance than the protection of views from front and rear boundaries. In my view, the written request implicitly accepts that the environmental amenity of neighbouring properties will not be preserved, but ameliorated by the preserving of some views, at the expense of others. 8. In considering the second element of the objective at cl 4.3(a), I regard the photomontages at Attachment 4 of Exhibit 3 to best depict the Applicant's submission on the likely sharing of views as they more accurately represent the full extent of obscure glazing which, by its nature, will obscure the view that is possible to be gained, albeit filtered, through the more open balusters of the existing steel balustrade. 9. Instead, Exhibit F compares a replacement balustrade in steel, being a version of the subject of the council order, against the more solid screening proposed, and places emphasis on the difference between the height, and not the comparative transparency of the materials. 10. While I accept that the building currently exceeds the permissible building height, and is cluttered with air conditioning units and other plant, I am not satisfied that the written request adequately addresses the matters required to be demonstrated by subcl 4.6(3) on which a contravention of the development standard at cl 4.3 would be justified. 11. As I cannot approve the contravention to cl 4.3 of the WLEP, there is no jurisdiction to approve of the development application or consider anything else. Orders 1. In relation to Proceedings 2018/352509, being Appeal 1, the Court orders: 1. The appeal is dismissed. 2. Development consent for modification application seeking to modify conditions that formed part of Development Consent No. LD12/1999 is refused. 3. All exhibits are returned, except for Exhibits E, F, 7 and 9. 1. In relation to Proceedings 2019/155188, being Appeal 2, the Court orders: 1. The appeal is dismissed. 2. Development consent for Development Application DA-448/2018 for works associated with a trafficable roof terrace and glass balustrade is refused. 3. All exhibits are returned, except for Exhibits E, F, 7 and 9. ………………………….. T Horton Commissioner of the Court ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2019