Applicant v NORTH SYDNEY COUNCIL

24. The Applicant also urges the Court to accept the Council's Planning Report's appraisal of the modification application in terms of the EP&A Act s 79C. In respect of this appraisal, the Planning Report expresses the following opinions:

In considering this proposal, Council will note that it was advertised to adjoining owners with a total of five (5) comments being received.

These submissions mainly concentrated on the use of the right of way for access to the premises and the proposed method of construction, storage of materials and access to he site.

The issues of use of the right of way are well commented on in the judgment (attached) issued by Bignold J on 11 September 1998 and it is not planned in this report to further discuss this issue.

The issue of use and construction of the site during construction is considered to be an important issue for which Council should have more detail and an appropriate condition of consent is attached.

Further, the issues of the existing LEP and proposed LEP and DCP No. 1 have been taken into account with the proposal and found satisfactory.

It is not considered that the deletion of the access ramp would have any material impacts on the natural or built environment, or on the social and economic impacts in the locality generally.

The suitability of the site for the development has previously been considered and this proposal is believed to cause no further impact to those previous considerations.

I refer to comments made in the consideration of the Section 79C(1) considerations regarding the objectors concerns.

These concerns revolve around the use of the right of way and the process of construction.

No details of the proposed construction methods accompany this application and it is appropriate for Council to be concerned with this issue and a condition is attached for consideration.

As previously stated, the issue of the right of way has been exhausted in the judgment (attached) of Bignold J. dated 11 September 1998.

D. IS THE DEVELOPMENT AS MODIFIED SUBSTANTIALLY THE SAME DEVELOPMENT?

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

26. The section essentially re-enacts the repealed s 102(1)(a) of the Act which section has been the subject of considerable judicial exposition, most recently (and authoritatively) by the Court of Appeal in North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97LGERA 433 in the judgment of Mason P (with which Sheppard AJA concurred).

27. Having stated that in its context in s 102(1) the verb "modify" means "to alter without radical transformation": see Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414 at 421, Mason P, in the following passage at 439/440 discusses the scope of the statutory power of modification:

When first enacted, s 102 reversed the earlier understanding of the law which held that a development application could not be recalled or varied after issuance: see Kirribilli Ex-Service Club Ltd v North Sydney Municipal Council (1964) 11 LGRA 76 at 79-80; Benalup Holdings Pty Ltd v Lismore City Council (at 259). The original form of s 102, enacted in 1979, confined the power of modification to details of the consent , but the words details of were removed in 1985 in response to the majority decision in Sydney City Council v Ilenace Pty Ltd . This amendment was obviously intended to enlarge the power to some degree. The meaning of substantially the same development is discussed by Stein J in Vacik Pty Ltd v Penrith City Council (unreported, Land and Environment Court of New South Wales, Stein J, 24 February 1992) in terms with which I respectfully agree.

Parliament has therefore made it plain that a consent is not set in concrete. It has chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity. The consent authority can withhold its approval for unsuitable applications even if the threshold of subs (1) is passed.

I agree with Bignold J in Houlton v Woollahra Municipal Council who (at 203) described the power conferred by s 102 as beneficial and facultative. The risk of abuse is circumscribed by a number of factors. Paragraphs (a), (b) and (c) of subs (1) provide narrow gateways through which those who invoke the power must first proceed. Subsection (1A) and subs (2) ensure that proper notice is given to persons having a proper interest in the modified development. And there is nothing to stop public consultation by a council if it thinks that this would aid it in its decision-making referable to modification. Finally, subs (3A), coupled with the consent authority's discretion to withhold consent, tend to ensure that modifications will not be enterprised, nor taken in hand, unadvisedly, lightly or wantonly. Naturally some modifications will be controversial, but decision-making under this Act is no stranger to controversy.

28. (I should note that par (b) of s 102(1) was not included in the re-enacted s 96(2) ).

29. His Honour's adoption of the decision of Stein J in Vacik Pty Ltd v Penrith City Council (unreported 24 February 1992) as to the meaning of "substantially the same development" needs to be further noted.

Turning to the issue of s.102(1)(a). Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion substantially when used in the section means essentially or materially or having the same essence.

Can it be said of the approved development, which incorporates the ramp access from Warringah Expressway for all ingressing traffic to the Club carpark that it will be substantially the same as the modified development which eliminates that ramp access and instead relies upon the Walker Street ROW for all traffic (including traffic to the Club) both ingressing and egressing the redevelopment?

The Council argues that the Court cannot relevantly be satisfied because the development, without the provision of the ramp access from Warringah Expressway is not substantially the same development as approved by the development consent because all ingressing traffic to the on-site carparking provision in the redevelopment will now use the Walker Street ROW, whereas in the approved development, there were separate and distinct ingress arrangements (a) for vehicles attending the on-site carparking provision allocated to the residential development and (b) for vehicles attending the on-site carparking provision allocated to the Club development.

Moreover, part of the relevant context for that factual determination is the fact that the question of vehicular access to the on-site carparking, and particularly the use of the Walker Street ROW, had been the major issue raised at the hearing of the appeal pursuant to the EP&A Act s 97, which resulted in the grant of the development consent. In paragraph 84 of my earlier judgment, I had found the Council's condition relating to the ramp access from the Warringah Expressway to be "entirely appropriate in view of the importance of this feature of the development proposal and the lack of detailed drawings for its implementation".

Thus, as a matter of context and history, the Council submitted that the elimination from the approved development of the separate Club vehicular access via the ramp from Warringah Expressway was to significantly and materially change the approved development.

The Council advanced a variant argument based upon the environmental impact of the proposed modification to the approved development. In this respect, it relied upon Mr Coady's Report which showed a possible 60% increase in traffic using the Walker Street ROW in the peak evening hour where, as is now proposed, that ROW provides the sole means of vehicular access to the on-site carparking provision of the redevelopment compared with the approved development situation where the ramp access via Warringah Expressway for Club traffic would be available.

It was submitted that this degree of percentage increase (involving some 41 vehicle trips per hour compared with 26 vehicle trips per hour) would have a self-evident impact on the amenity of the residents of Century Plaza, including their amenity in using the Walker Street ROW which also provides vehicular access to their own on-site parking accommodation.

This submission, based upon Mr Coady's evidence, of course has to be reconciled with his expressed opinions (which were not challenged) that I have earlier set out, namely -

that the increased vehicular traffic using the Walker Street ROW is a relatively minor level of traffic activity which could not be expected to have a significant effect on the amenity of Century Plaza residents during the evening peak period… .. and will not have an unacceptable effect on the merits of the residents of Century Plaza.

In advancing these arguments, (and especially the variant argument), the Council particularly relies upon the judgment of Stein J in Vacik and the judgment of Stein JA in Tynan v Meharg (1998) 101 LGERA 255.

In Vacik, the development consent granted for the extraction of sand and shale had imposed conditions requiring site rehabilitation at the end of the extraction process. The modification application proposed that the rehabilitated landform be significantly different and that the land fill operation involve the deposit of non-putrescible waste.

At p 4 Stein J compared the proposed modification with the existing consent in the following passage:

In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations. A significant difference is one of sequencing. The existing consent requires rehabilitation at the end of the excavation of material. By contrast the amendment proposes progressive rehabilitation over time and while the excavation of clay/shale continues. This has obvious implications for environmental impacts.

At p 5, Stein J warned against an overgeneralised description or analysis of the relevant developments (to be compared) in the following observation:

In approaching the s.102 exercise one should not fall into the trap of saying that the development was for a certain use - extractive industry - and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s.102.

A little later, his Honour concluded as follows:

….it is plain that the acknowledged additional use of waste disposal inherent in the proposed modification to the consent is such as makes the development different from that for which consent was granted. In my opinion it cannot be said to be substantially the same development .

Tynan was not a case involving the EP&A Act s 102(1) (or now s 96(2)) . Rather, it was a case involving a similar power conferred by the Local Government Act s 106(3) upon a Council to amend an approval -

if: (a) it is satisfied that the approval as amended will be substantially the same as the original approval;

At 258 of his judgment, (concurred in by the other members of the Court), Stein JA held that

(A)pproval for the building to be located within a metre from the common boundary, in the circumstances of this case, cannot be seen to be substantially the same as the 1995 approval for the building to be located 12.4 m from that boundary. It is plainly very different in substance and effect.

The Applicant's competing argument is that the development, as modified will be substantially the same as the development approved by the development consent, since the relevant comparison yields precisely the same components of the redevelopment, namely a (i) refurbished club; (ii) an addition comprising 48 residential flats; and (iii) the existing on-site carparking provision, the only difference being the elimination of the ramp access for vehicular traffic to the Club's on-site carparking provision from the Warringah Expressway and instead of that arrangement, an accommodation of that ingressing traffic within the Walker Street ROW.

The Applicant places considerable reliance upon Mr Coady's unchallenged evidence concerning the acceptable impact on residential amenity of Century Plaza residents of the increase in traffic on the Walker Street ROW.

It also places particular reliance upon the contents of the Council's Planning Report on the issue of whether the modified development is relevantly "substantially the same development" (sine Mr Coady's Report is silent on this issue)..

It urges the Court to accept these unchallenged expert opinions and to find that the development, as modified, is substantially the same as the development approved by the development consent.

I have already mentioned how the Council's argument itself makes use of Mr Coady's opinion, which openly concedes an increase of traffic on the Walker Street ROW as a direct consequence of the proposed modification of the approved development.

Concerning the relevant opinions contained in the Council's Planning Report, the Council invites the Court to accept the opinion of the Council as evidenced in its Resolution B and to reject, as legally flawed, the opinion in the Planning Report that "this proposal could be viewed as substantially the same as approved by the Court. This is on the basis that the proposed amendments represent only a fraction of the overall development, albeit modifying the vehicular access to the building".

In my judgment, that opinion (which adopts the cautious approach signified by the expression "could be viewed")is legally flawed inasmuch as it places undue reliance upon the modification representing "only a fraction of the overall development".

That opinion appears to involve some form of numeric or quantitative evaluation of the modification as a particle of the whole, without attempting any qualitative assessment. With respect, I think this approach is legally flawed and I am entirely unable to accept it. Far less am I persuaded by it to the extent that fulfils the requirement of the EP&A Act s 96(2)(a).

This conclusion does not mean that there is no foundation or basis in the evidence for the Court being satisfied of the statutory requirement because there is the evidence of the modification and I, sitting as the consent authority in an original capacity by virtue of cl 72(1) of the Regulation, must come to a decision as to whether the power of modification is available in the present case, and if so, whether as a matter of discretion it ought be exercised in favour of modifying the development consent.

The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.

The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development.

The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)..

At the level of physical change, the modified development is obviously different by virtue of the elimination of the ramp access from the Warringah Expressway to the Club carpark, with the direct consequence of employing the Walker Street ROW as the sole means of vehicular access to the redevelopment's on-site carparking provision.

Qualitatively appreciated, that difference is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified.

In the present case, the separate ingress for vehicular traffic to the Club was a material and essential physical element of the approved development. It was held to be "important" in my judgment, allowing the appeal and granting the development consent.

Its proposed elimination materially changes the approved development.

Because the requirement of s 96(2)(a) calls for an ultimate factual finding on the primary facts of the case, only illustrative assistance is to be gained from consideration of other cases involving their own factual findings on the relevant satisfaction required by s 96(2)(a) (or its antecedent, s 102(1)(a)).

Reference to those cases indicates that environmental impacts of proposed modifications to approved developments are relevant to the ultimate factual finding - see in addition to Vacik and Tynan, the Court of Appeal's judgment in Mison v Randwick Municipal Council (1991) 73 LGRA 349 at 353 (though the last mentioned case was not directly concerned with s 102(1)(a)).

Just as in Mison where the Court noted that the height of the approved building was of known importance to the neighbouring objector, and that fact must be taken into account in making the required factual finding, so in the present case, the use of the Walker Street ROW for access to the redevelopment was of prime importance to the residents of Century Plaza, a matter that had manifested itself in five separate earlier proceedings, (all mentioned in my earlier judgment) as well as in the proceedings before me which resulted in the grant of the development consent. In that context, the ramp from Warringah Expressway providing exclusive vehicular access to the Club's on-site carparking provision was an important feature of the redevelopment.

Although it is well established that the comparative task required to be undertaken to satisfy the requirement of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential. This approach is exemplified in the decision of Talbot J in The Satellite Group (Ultimo) Pty Ltd v Sydney City Council (unreported 2 October 1998) where Talbot J held that the statutory modification power was not available because his Honour had not been satisfied that the development as proposed to be modified would be substantially the same as the currently approved development.

The approved development in that case was a nine storey building comprising 95 flats and 9 retail shops at the ground floor level.

The modification proposed to eliminate all but one shop on the ground floor and to utilise the freed space for additional flats.

In the course of considering whether the statutory requirement of s 96(2)(a) had been satisfied, his Honour said:

It is not appropriate, in my opinion, to attempt to confine the consideration of the extent of changes to the context of the whole building, notwithstanding that the consent authority is required to consider the totality of the development as proposed for modification and to take into consideration such of the matters referred to in s 79C (formerly s 90) as are of relevance to that development. The focus may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development.

I would respectfully agree with his Honour's views. They have obvious application to the facts of the present case, where the only change involves the elimination of the separate ramp access from Warringah Expressway providing exclusive vehicular ingress to the Club's on-site carparking provision, where for the reasons I have given, that access arrangement was a material and essential feature of the approved development.

Its entire elimination, with the consequence of all traffic to the redevelopment having to use the Walker Street ROW, materially changes the approved development to such an extent, that I am not satisfied that the modified development is substantially the same as the currently approved development.

Accordingly, I have concluded that the modification power is not available in the present case.

In so concluding, I have rejected the Applicant's argument that the evidence of the planning appraisal in terms of the EP&A Act s 79C precludes a finding that the modified development is not substantially the same. That planning appraisal is, of course, relevant to the exercise of discretion under s 96(2), but it is not relevant to the threshold question whether the modification power is available. The scope of the statutory power (including the limitation imposed by par (a)) cannot be affected by considerations affecting the discretionary exercise of that power.

For all the foregoing reasons, I have concluded that the modification power conferred by the EP&A Act s 96(2)(a) is not available in the present case. In these circumstances, there is no need to consider the case for the discretionary exercise of that power,

Accordingly, I make the following orders:

1. Modification application be refused.
2. Exhibits be returned.
3. No order as to costs.

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.