Background
Kelly Maries Freitas sought to modify development consent DA 2025/0062 for a two-storey dwelling with basement car parking at 2 Duchess Avenue, Rodd Point, NSW. The development consent (granted 2 September 2025) included a condition requiring removal of a proposed safety balustrade from the roof. This condition was imposed partly in response to objections from a neighboring property owner regarding rooftop treatment. Freitas submitted a modification application on 30 September 2025 seeking to reinstate the balustrade at 1.0 meter height to screen approved rooftop equipment including solar panels, a solar hot water system, and air conditioning condensers. The City of Canada Bay Council deemed the application refused, prompting Freitas to appeal to the Land and Environment Court under section 8.9 of the Environmental Planning and Assessment Act 1979 (NSW).
The contentious issue centered on whether a 1-meter high masonry balustrade constituted an appropriate design response to screen approved rooftop plant and equipment. The Council argued the screen added excessive bulk and scale to the building and that alternative measures—such as relocating the equipment to the approved basement plant room or repositioning it more centrally on the roof—would be preferable. Freitas contended that screening of plant equipment is standard practice and that the proposed design was consistent with the approved dwelling’s architecture.
The Court’s Holding
The Land and Environment Court, presided over by Acting Commissioner Kullen, approved the modification application. The court found the proposed modification satisfied the statutory test under section 4.55(1A) of the Environmental Planning and Assessment Act 1979 (NSW) by determining: (1) the modification had minimal environmental impact; (2) the development as modified remained substantially the same as originally approved; (3) proper notification had occurred; and (4) no relevant submissions opposed the modification.
The court accepted expert evidence that screening of rooftop plant equipment is common urban design practice to achieve better visual outcomes from both public and private domains. The proposed 1-meter balustrade, setback 3.0–3.5 meters from the roof edge and constructed in concrete matching the dwelling’s architectural language, did not breach the Local Environmental Plan height of buildings control of 8.5 meters for the site. The court rejected concerns about potential future use of the rooftop as a habitable area, noting that the roof plan explicitly designated the area for circulation and maintenance only, and that development consent conditions could control and prohibit any unauthorized residential use.
The court concluded that the Development Control Plan contains no prohibition against rooftop balustrades on dwellings and that the proposed screening design was integrated with the architectural features of the dwelling. Since the plant and equipment had already been approved for rooftop location under the original consent, the screening balustrade represented an acceptable holistic design outcome rather than an inappropriate addition to bulk and scale.
Key Takeaways
- Modification applications to reinstate previously-deleted design elements may be approved if the elements represent minor changes and maintain substantial similarity to the original approved development.
- Rooftop screening of approved plant and equipment can constitute acceptable design practice under planning controls, even over a consent authority’s objection, if the screen complies with height limits and development control plan standards.
- Concerns about bulk and scale must be grounded in specific breaches of planning controls rather than general design preferences; the fact that an element “adds to bulk and scale” is insufficient if it remains within applicable standards.
- Alternatives to a proposed design (such as relocating equipment to a basement plant room) need not be pursued if the applicant’s preferred approach complies with applicable planning instruments.
Why It Matters
This decision clarifies that residential developers have latitude to screen approved rooftop equipment through modification applications when the screening is properly designed, materially consistent with the building, and compliant with planning controls—provided the underlying equipment was already approved. The court’s decision signals that councils cannot simply delete design elements at consent stage and expect that objection to bar their reinstatement through modification if no actual planning breach occurs. For planning practitioners and councils, the decision emphasizes that bulk-and-scale objections require substantive reference to specific development control plan requirements; generic aesthetic preferences carry less weight when quantifiable standards are met.
The decision also establishes that conditions of consent effectively manage future use risks (such as illegal conversion of rooftop space to habitable areas), reducing the need for consent authorities to refuse legitimate design proposals based on speculative concerns about downstream misuse. This judgment reflects a willingness by the Land and Environment Court to approve rooftop modifications that achieve integrated architectural outcomes when statutory tests are satisfied, even when significant objections from the local planning authority are raised.
✉️ Get tomorrow’s cases before your first coffee
Daily Case Law is our free morning digest — the most substantive new decisions, filtered to your jurisdictions and topics, each linking back here for the full analysis.