Antoniades Architects v Inner West Council

Jurisdiction to determine the modification application - subss 4.55(2)(a)-(c) of the EPA Act

1. Before I can determine the modification application under s 4.55(1), I need to be satisfied about the matters raised by subs 4.55(2)(a)-(c) of the EPA Act. The section provides as follows: 4.55 Modification of consents - generally (cf previous s 96) (1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification. Note - Section 380AA of the Mining Act 1992 provides that an application for modification of development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned. (1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) 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 (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with - (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (5) (Repealed) (6) Deemed refusals The regulations may make provision for or with respect to the following - (a) the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent, (b) the effect of any such deemed determination on the power of a consent authority to determine any such application, (c) the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act. (6A), (7) (Repealed) (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.
2. The comparison required by s 4.55(2)(a) is between two developments; the development as modified, and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342: [2008] NSWLEC 333 at [16]; Arrage v Inner West Council [2019] NSWLEC 85. In particular, it is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development.
3. After having compared the main features or components of the original development (identified at [1] above), with the modified development, I am satisfied that the development to which consent as modified relates is substantially the same development as the development for which the consent was originally granted because the components are materially the same. In forming this positive state of satisfaction, I understand that the residential flat building as originally approved provided 2 accessible car spaces on an at grade open car park accessed from Station Street and the development after modification also provides two accessible car spaces in the same location within the at grade open car park. And, while the modified development will include an additional studio unit within the development, the evidence is that it will be contained within the originally approved built form without change to the originally approved external appearance of the building. Similarly, the changes to the location of the bicycles within the car park and the waste storage area are immaterial as they remain located within the car park without change to the fire stair or external appearance of the building.
4. With respect to subs 4.55(2)(b) and (c), I am satisfied that the application was notified between 5 November to 29 November 2018 in accordance with the Council's policy and no submissions were received. I am also satisfied that all necessary referrals as identified in the Council's ASOFC have been undertaken and nothing arises on that basis.
5. Accordingly, having reached the requisite state of satisfaction required by s 4.55, I find that there is no jurisdictional impediment to the grant of consent to the application.

Merit assessment of the proposal in accordance with s 4.55(3)

1. In assessing the merits of the proposal, s 4.55(3) requires a consideration of such of the matters referred to in s 4.15 of the EPA Act as are relevant to the development the subject of the application. This includes, a consideration of the reasons for the decision given by the consent authority for the grant of the consent that is sought to be modified: s 4.15(3).
2. The original development was approved under delegated authority and the reasons for the decision are contained in the Council's assessment report entitled "Delegated Authority Report" (Exhibit 4). The report records that the site is zoned R2 Low Density Residential under the provisions of the Marrickville Local Environmental Plan 2011 (MLEP) and describes the surrounding area as "…residential development to the west and north, mixed use commercial /residential to the south". At that time, residential flat buildings were a permissible use with consent within the zone but only as part of the conversion of an existing industrial and warehouse building.
3. In that regard, cl 6.9 of the MLEP and Part 6.4.3 of the MDCP prescribed matters for consideration when converting a warehouse building to a residential flat building. These considerations are generally associated with the impact of the development on the scale and streetscape of the surrounding locality, the suitability of the building for adaptive re-use and the degree of modification to the footprint and façade of the building. The DA assessment report concluded that the industrial building on the site was suitable for adaptive re-use and as designed it "upheld the amenity standards relating to solar access, private open space, accommodation size, internal layout and privacy under the provisions of the MDCP 2011" (Exhibit 4, pp 10, 12).
4. Having considered the reasons for the grant of the original development consent, as required, and bearing in mind the limited issues now agitated by the Council, my focus is now directed to an assessment of the merits of the modification application against the planning controls called up by s 4.15 of the EPA Act, in particular the MDCP.

The acceptability of the amenity of the studio unit - particularly in relation solar access

1. Mr Irons gave expert evidence that the proposal which is located in the Enmore North and Newtown Central (Precinct 8) area, as identified in Part 9.6.8 of the MDCP is contrary to the desired future character of the area as outlined in Part 9.6.2 of the MDCP which provides: "11. To ensure the design of higher density development provides adequate amenity for the intended occupants of the building and protects the residential amenity of adjoining and surrounding properties."
2. Referring to Objective O43 of Part 6.4.3 of the MDCP which seeks to ensure that the impact of the conversion on the amenity of existing and future residents is considered in assessing the development, Mr Irons said that the new unit offered substandard amenity and outlook and was therefore contrary to Control C75 viii of the MDCP.
3. Referring to Control C9 of Part 2.7.4 of the MDCP, Mr Irons said that at least 65% of dwellings within residential flat buildings must provide living area windows positioned within 30 degrees east and 20 degrees west of true north that allow for direct sunlight for at least two hours over a minimum of 50% of the glazed surface between 9:00am and 3:00pm on 21 June. As originally approved, Mr Irons said that 6 of the 13 apartments in this case had living area windows positioned within 30 degrees east and 20 degrees west of true north which received direct solar access for at least 2 hours. And, although the living area windows of apartments 1.04 and 1.05 are not within 30 degrees east and 20 degrees west of true north, Mr Irons found their amenity satisfactory because they received 2 hours direct sunlight to their living room windows and private open spaces and had double height ceilings and were located on the first floor with an easterly outlook to Station Street.
4. Mr Irons is critical of the location of the proposed studio unit on the ground floor adjacent to a communal fire stair and the 5.3m high brick wall on the boundary because it does not receive 2 hours of direct sunlight to at least 50% of the glazed surface of the living area windows. And, while the sun diagrams show that the proposed skylight will receive some sunlight between 11.45am and 2pm on 21 June, Mr Irons believes this sunlight will not penetrate the floor area and is significantly less that the 50% of glazed area servicing the living room. Mr Irons is also concerned about the fact that the associated open space receives no direct sunlight on 21 June.
5. Ultimately, Mr Irons gave evidence that it is the cumulative impacts of poor design, non-compliant solar access, limited outlook, open space and setback that demonstrate that the applicant is "…trying to add new fabric and a new studio into an area which… is simply unsuitable" (Tcpt, 2 December 2020, p 44(35-40)).
6. Mr Karavanas disagreed with Mr Irons' application of the policy controls in the MDCP to the facts and his conclusions. Accepting that Control C9 of Part 2.7.5.2 of the MDCP does not differentiate between a new residence and/or the adaptive re-use of a non-residential flat building Mr Karavanas said "…that an appropriate balance needs to be observed between the level of amenity (such as solar access) that is provided in a new residential flat building and the character and appeal attributed to living in a converted industrial building" (Exhibit G p5).
7. Mr Karavanas believes that the applicant has got the balance right. The new studio fills a space within the adapted building which is underutilised. An "unattractive dead space" which is suitable for conversion. In that regard, he has assessed the proposed studio as offering a satisfactory level of internal amenity in terms of solar access - achieving solar penetration through the kitchen skylight for 2 hours and 15 minutes in mid-winter. This means that 10 of the 14 apartments or 71% of the apartments in the building will receive solar access as required (Annexure 4 of Joint Report - Exhibit G). In giving this evidence, Mr Karavanas accepted that not all of the 14 units will have achieved full technical compliance with the orientation requirements in C9 of the MDCP but said that the existing and proposed development comprises a technical non-compliance only.
8. Indeed, Mr Karavanas said if the other 13 apartments technically complied with solar access control, then the proposed additional unit (regardless of its solar performance) would also result in compliance. Mr Karavanas is of the opinion that the technical non-compliance with the MDCP is minor given the proportion of units within the building receiving solar access, and that the new studio unit will not reduce solar access to any of the approved units. He emphasised that the new studio having been designed to maximise the penetration of natural light will still receive one hour of direct solar access in mid-winter. The recessed south-western corner, large windows and the open planter area allows natural light to enter. In addition, an obscured glass skylight over the kitchen area will further illuminate the studio space. In addition, the proposed apartment has a floor to ceiling height of 3.310m which provides a greater sense of light than a similar apartment with a floor to ceiling height of 2.7m. The result is an acceptable level of amenity.
9. Mr Karavanas is also of the opinion that building separation is not an issue because of the setback from the northern neighbour and the height of the boundary wall. He believes the proposal maintains appropriate privacy through the proposed privacy screens on the deck and fire stair, the landscape screening and the frosted glass facing the fire stair.

Finding - amenity and solar access

1. Mr Karavanas' observation that the Control C9 of Part 2.7.5.2 of the MDCP does not differentiate between a new residence and/or the adaptive re-use of a non-residential flat building is relevant in my assessment of this application. I accept his evidence that an appropriate balance needs to be observed between the level of amenity (such as solar access) provided in a new residential flat building and in a converted industrial building.
2. The proposal's non-compliance with the numerical solar access control is solely due to the geographical requirements within Control 2.7.5.2 - where windows have to be positioned 30 degrees east and 20 degrees west of true north. If the Apartment Design Guide applied to the application which I accept does not - then the development would be compliant with 71% of the units achieving two hours. Therefore, to the extent that there is an objective of providing solar access, I accept that the proposed design achieves this outcome. The building is a conversion, not a new building, and in my assessment of the evidence, the solar access is adequate.
3. Moreover, in circumstances where the development as approved, due to its orientation, does not comply with the solar access control in the MDCP, and the new studio unit by its orientation also cannot technically comply, it seems anomalous to refuse the studio on a technical non-compliance alone.
4. Accordingly, for the reasons given by Mr Karavanas, summarised above, I find that the unit offers acceptable amenity in terms of solar access, privacy, open space and setback. The space on the ground floor of the existing building where the studio is proposed is underutilised and the inclusion of this new studio residence is acceptable after a merit assessment.

Car parking

1. The Council contends that the proposed car park configuration results in "worse pedestrian safety than what was approved" contrary to the desired future character of the area as outlined in Part 9.6.2 of the MDCP namely: "13. To ensure the provision and design of any parking and access for vehicles is appropriate for the location, efficient, minimises impact to streetscape appearance and maintains pedestrian safety and amenity."
2. It also contends that the proposed car park configuration is contrary to Objective O7 of Part 2.10.1 of the MDCP which reads as follows: "To ensure all parking facilities are safe, functional and accessible to all through compliance with design standards"
3. This contention was addressed by the planners in their joint report; however, at the hearing, the traffic and access experts dealt with these issues.

Mr Bertacco's evidence

1. Mr Bertacco gave evidence that the two car spaces for people with disabilities, as proposed, are non-compliant with Australian Standard (AS) 2890.6-2009 Parking facilities: Off-street parking for people with disabilities because the shared areas do not meet the minimum parking space dimensions outlined in Section 2.2.1 of the AS 2890.6-2009. According to Mr Bertacco, each car space for people with disabilities is required to have a shared area on 1 side 2400mm wide by 5400mm long and a shared area 1 end (front or rear) of 2400mm long by 2400mm wide. Furthermore, Section 1.3.2 of the AS 2890.6-2009 advises that the shared area may not be shared with any other purpose other than transitory obstruction of the area.
2. Section 1.1 of the AS 2890.6-2009 makes it clear that these are minimum requirements and Section 1.3.3 advises that they are mandatory.
3. Figure 1 from the joint report below outlines the turntable at issue (6.5m radius in blue) and the shared areas are shown hatched green.
4. Mr Bertacco gave evidence that Figure 1 shows encroachments within the shared areas which are more than transitory (AS 2890.6-2009, Section 1.3.2). The encroachments include columns, a storeroom, stairs and a community garden. Due to these encroachments, Mr Bertacco has assessed that these car spaces are not functional as car spaces for people with disabilities.
5. Mr Bertacco gave evidence that the proposed car park configuration results in worse pedestrian safety than what was approved because: 1. The turntable encroaches within the accessible path which could lead to a fall in the event that the turntable is in motion while someone is walking on the path at the same time. 2. The specifications for the turntable provided in the parking assessment in Appendix B notes the clearance diameter required by the manufacturer is 7.2m. This is due to the fact that the car spaces slightly overhang the edges of the turntable - as indicated on Figure 1 above. The red clearance is the diameter shown on Figure 1 and it shows that a car on the turntable may collide with the community garden or a person walking along the accessible path when the turntable is in motion. 3. In this carpark layout, the shared areas at the rear of the spaces required for rear loading/unloading of wheelchairs are very close to the vehicle entry with little visual warning for vehicles entering the car park. This results in a much less safe situation than the approved carpark layout where the car spaces were set away from the car park vehicle entry. 4. The carpark relies on mechanical means to ensure vehicles are able to enter and leave the premises in a forward direction - it may break down, if not maintained, and in that circumstance, the vehicles would be required to reverse out into a public road with poor sight distances to pedestrians.

Mr Logan's evidence

1. The applicant's traffic expert, Mr Logan does not share Mr Bertacco's concerns with the application. Offering some perspective to the traffic generation for this application, Mr Logan gave uncontradicted evidence that these two car spaces, based on the RMS guidelines will generate on average three car trips a day. Some days there will be two trips, some days four trips - however, on any view his evidence was that this carpark "…doesn't get much action" (Tcpt, 2 December 2020, p 58(1-5)).
2. The letter from the Australian turntable notes that it will take approximately 40 seconds for the turntable to turn 10 degrees.
3. Therefore, according to Mr Logan, if we say there are three vehicle movements a day, we are looking at a turntable moving for approximately two minutes in a whole day.
4. With respect to the parking functionality and safety, Mr Logan, gave evidence -based on his parking assessment report in Annexure B of the joint report. In his assessment, the proposed vehicle turntable will optimise pedestrian safety on Station Street by enabling users to enter and exit the site in a forward motion.
5. Mr Logan also believes that the proposed turntable will enhance onsite pedestrian safety because it will remove the on-site reverse manoeuvres necessary to depart the site in a forward direction, and therefore, provide a safer environment for residents entering the development and walking into the car park area. For those reasons, he believes that the parking facilities will be safe and functional.

Ms Perry's evidence

1. The applicant's access consultant, Ms Perry is of the opinion that the two car spaces for people with disabilities offer performance-based solution in keeping with the performance requirements of the Building Code of Australia (BCA) and will offer access as necessary within the residential context (Exhibit F p 5) .
2. The proposed turntable has a 6.5m diameter and Ms Perry said for a compliant accessible car parking space, a total width of 2.4m is required for the car space. Therefore, two accessible car spaces require 4.8m. While the shared space associated with the accessible parking space does extend past the edge of the turntable, which is deemed to be acceptable as the area is level, the path of travel is not considered to be obstructed. The shared space is an open space which has a purpose as a pedestrian access path to and from the motor vehicle from its adjoining pedestrian areas. There are existing columns provided within the proposed shared area. However, these are not seen to obstruct from the driver's door, which is the critical factor in determining suitability of the accessible car parking.
3. Ms Perry pointed out that the while accessible car parking in accordance with the AS 2890.6-2009 is required by the MDCP in a residential context such as this development, car parking requirements are different to that of public buildings. Both AS 4299-1995 Adaptable Housing and the Livable Housing Design Guidelines require a width of 3.8m for the car parking in the residential context. When considered in conjunction with the 2.4m width required for the vehicle, it can be demonstrated that the 3.8m widths can be accommodated between the existing columns. Noting that there are adaptable apartments within the development, Ms Perry gave evidence that the provision of carparking complying with the adaptable housing standards is appropriate (Exhibit F, Figure 5 at p 6).
4. In this case, the pedestrian area has been designed around the vehicular turntable. The vehicles will remain on the turntable at all times when in the parked position and in her assessment will not affect the continuous path of travel that has been designed to avoid travel over the turntable.
5. The width of the nominated pedestrian path (in purple) is in keeping with AS 1428.1-2009 - existing gradients on the site are retained and provide slope in accordance with the AS 1428.1-2009 being relatively level. The bicycle racks are now outside that zone of travel.
6. In response to Ms Perry's evidence, Mr Bertacco said that the shared spaces at the rear of the car spaces are not shown on the drawings and are required by AS 2890.6-2009. Furthermore, the shared spaces have not catered for new technologies such as raps and hoists either side or at the rear to allow occupants either driver or passenger to leave or enter the vehicle in a wheelchair and Figures 2 and 6 clearly show encroachments in the path of travel (Exhibit F at p7).

Finding: parking - access

1. The evidence is that the development was approved with 3 adaptable units and despite the MDCP requirements and that the Council only required two car spaces because of the site's constraints.
2. The two spaces, as approved, are dedicated shared spaces located away from the entrance and thoroughfare.
3. I accept Mr Logan's evidence about traffic generation for the site and note that generally we are dealing with 3 trips per day - a low level of traffic movements. The turntable will be moving for approximately two minutes in a whole day and it is fair to expect that the users of the allocated spaces will be familiar with the site and its constraints.
4. As Ms Perry explained in her oral evidence, there is adaptable terminology and accessible. Accessible is in the public realm e.g. shopping centres, commercial buildings and AS 2890.6-2009 is linked to that. Within a residential context AS 4299-1995 adaptable housing has always been relevant. AS 4299-1995 requires a 3.8m width space instead of 4.8m width space (Tcpt, 2 December 2020, p 61(2-45)).
5. Ms Perry points out that MDCP refers to AS 2890.6-2009 Parking facilities: Off-street for people with disabilities (MDCP- Part 2: Generic Provisions) and relates it to the on-site car parking provisions for adaptable units (MDCP Table 1). Ms Perry believes that the correct standard to be applied in this case is the adaptable housing AS 4299-1995. The relevance of AS 4299-1995 is supported, in her view by the fact that the more recent Livable Housing Design Guidelines 2017 and the Specialist Disability Accommodation Standards released in 2019 also adopt the adaptable housing car parking requirement of 3.8m by 6m.
6. Ultimately, Ms Perry's evidence is that if we place the two x 3.8m wide spaces onto the turntable, they fit quite nicely and there is no requirement for the rear of the car to have off-loading space. Ms Perry said that because the turntable moves around, this offers flexibility and options for circulation at the front, at the back and at the rear, more flexibility than a static garage would to assist people with a disability exit or enter the car park.
7. I accept Ms Perry's evidence that the turntable will accommodate the needs of the residents, and in this residential context that the 3.8 x 6 metres spaces are accepted under current Specialist Disability Accommodation for both fully accessible high-level categories. The evidence is that the BCA does not apply to car parking for disabilities in a development of this nature (Table D3.5 for a Class 2 building does not require any accessible car parking). However, if that standard was applied, Ms Perry has assessed that this development does not breach that standard because the flexibility of the turntable provides circulation areas at any point just by turning the turntable. With respect to the obstruction generated by the columns, I accept, as Ms Perry stated, that AS 2890.6-2009 requires bollards within a shared space to stop people parking in the areas - so the columns are no more obstructive than a bollard would be.
8. Ms Perry has internationally recognised specialist expertise in accessible/ adaptable safety. For that reason, I prefer her evidence to that of Mr Bertacco on this issue. I find that the vehicle turntable will function safely and provide requisite width to allow for safe pedestrian access around the vehicle turntable and safe entry into and out of the accessible spaces.

Conclusion and directions

1. For the reasons outlined, I am satisfied that the modifications are acceptable after a merit assessment under s 4.15 of the EPA Act and I propose to grant consent to the application subject to the Council's conditions as amended by the applicant dated December 2020 received by the Court.
2. The Court directs that the conditions be prepared in the requisite template and provided within 7 days of the date of these reasons for judgment. Upon receipt of the final version of the conditions, the Court will make final orders.

Addendum made on 7 April 2021

1. I handed down my reasons for judgment in this Class 1 appeal on 25 March 2021 to uphold the appeal subject to conditions. I directed the parties to prepare the conditions in the requisite template and to provide them to the Court. After a review of the conditions, I am satisfied that the conditions accord with my findings and I now make the following orders.
2. The Court orders that: 1. The appeal is upheld. 2. Modification application No. DA201600305.06 to modify Development Consent No. DA201600305 originally granted by the Inner West Council on 28 November 2016 to carry out alterations and additions to the existing industrial building and convert it into a residential flat building containing 13 dwellings at 29 Station Street Newtown pursuant to section 4.55 of the Environmental Planning and Assessment Act 1979 is approved subject to the conditions of consent set out in Annexure "A". 3. As a consequence of the modification, Development Consent No. DA201600305 is subject to the consolidated, modified conditions of consent set out in Annexure "B". 4. The exhibits are returned except for A, B, J, L and 1.

Senior Commissioner of the Court Annexure A (178016, pdf) Annexure B (306583, pdf)

Amendments 07 April 2021 - See addendum. 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: 07 April 2021