Attard v Ku-ring-gai Council

Progress and Security(1988)66 LGRA 236, Morris v Leichhardt Council [2008] NSWLEC 1106, Vacik Pty Limited v Penrith City Council , CASES CITED: Sydney City Council v Illenace Pty limited (1984)3 NSWLR 414 North Sydney v Michael Stanley & Associates Pty Limited (1988)97 LGRA 433, Moto Projects (No2) Pty limited v North Sydney Council (1999)106 LGRA 298, Arkibuilt v Ku ring gai Council [2006]NSWLEC, Fairfield City Council v N7&.S Oliveri

DATES OF HEARING: 9 March 2010 22 April 2010

APPLICANT Mr Gough (solicitor) SOLICITOR Storey and Gough LEGAL REPRESENTATIVES:

RESPONDENT Mr C McEwen (barrister) SOLICITOR Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Introduction 1 This is an appeal under section 96(6) of the Environmental Planning and Assessment Act 1979 (the Act) against Ku-ring-gai Council's refusal of an application MOD252/09 under section 96(2) of the EPA Act to modify development consent DA0471/07 to allow the construction of: a garage addition (7.97m x9.36m) to the rear of the existing dwelling, including a single garage (6.5mx4m); pool equipment and A/C unit; sauna; cellar, workshop and pool store; and a solar panel for heating located on the roof of the western service wing of the dwelling (panel located to the western side of the gable) 2 on Craignairn the site at 37 Burns Road Wahroonga that is identified as a heritage item of local significance under Part 2 of Schedule 7 of the Ku-ring-gai Planning Scheme Ordinance (KPSO). 3 This appeal raises the following questions: does the Court have power under section 96(2) of the Act to deal with this application and if so, after a consideration of the relevant matters referred to in section 79C(1) including clause 61D (2) of the KPSO, should it exercise its discretion to approve the application? 4 I have determined that I do have jurisdiction to deal with this application under section 96(2) but after a consideration of the relevant matters in 79C(1) including clause 61D(2) of the KPSO I find the modified development will result in an adverse impact on the heritage significance of the heritage item so I refuse this application and I dismiss the appeal. Background 5 The subject site is a corner block with a northern frontage of 98.65m to Burns Road and a 72.29m western boundary to Cleveland Street. Erected on the site is "Craignairn" a large two-storey dwelling set in expansive landscaped curtilages to both street frontages. A circular driveway from Burns Road accesses the site.

6 On 2 February 2005 Council issued a consent DA882/04 (the 2004 consent) for the development site which allowed additions and alterations to the existing dwelling and the erection of a freestanding triple garage and first floor loft, fencing to Burns Rd and Cleveland Street frontages, and a lapped and capped fence to the east side boundary at 37 Burns Road 7 The 2004 consent was activated, with staged construction certificates issued for the front fencing (Stage 1) on 6 June 2005 and alterations and additions to the dwelling (Stage 2) on 16 November 2006. 8 on 6 September 2007 Council issued consent DA0471/07 (the original consent for the purposes of this modification appeal referred to as the 2007 consent) which allowed alterations and additions to the dwelling house including an attached triple garage with first floor media room at the rear, construction of a tennis court, tea house, pergola, swimming pool and landscaping works. 9 According to the evidence, at the time of lodgement of the 2007 consent the applicant had not built or had a construction certificate issued to erect the freestanding garage approved under the 2004 consent on 20 September the council issued consent 2007 with the following Condition 1: "This consent modifies the development consent to Development Application No 882/04 to the extent that the approved freestanding garage structure in that consent is deleted. Reason: To ensure the orderly development of the land and there is certainty as to the consent applying to the subject land." 10 After the issue of consent 2007 the applicant sought and had a construction certificate issued for Stage 3 works under consent 2004 and erected the freestanding triple and first floor loft. 11 On 6 May 2008 the applicant lodged a further development application DA409/08 for alteration and additions to the existing dwelling including a triple garage addition at the rear (south elevation), veranda extension (east elevation), alterations and additions to freestanding two storey garage/loft, swimming pool, tennis court, ancillary structures and landscaping works. This application was refused on 15 October 2008 by the Ku-ring-gai Planning Panel and subsequently appealed to the Court in Attard V Ku -ring-gai Council [2009] NSWLEC1070 (10 March 2009). On appeal the Court approved certain alterations and additions on the site but deleted the proposed integrated triple garage at the rear of the dwelling.

12 On 29 May 2009 the applicant lodged a modification application MOD151/09 to delete condition 1 of the 2007 consent and the facts and contentions state it was lodged because he believed the circumstances had changed since approval of the 2007 consent as the freestanding garage approved under the 2004 consent had now been built. 13 On 25 June 2009 council received from a private certifier the construction certificates for the works in the 2007 consent. 14 On 28 July 2009 council's compliance officers observed construction works on the site contrary to condition 1 of the 2007 consent and the Facts and Contentions states:"… it was council's view that In order for the applicant to erect the triple garage to the rear of the dwelling under the [ 2007 consent] condition1 requires the freestanding garage (now built) under the consent [2004 consent] to be demolished." 15 Council commenced Class 4 proceedings 40512/09 in respect of that the non complying works and on 31 July 2009 the Court made the following Orders: 1. Until further Order of the Court, the respondent undertakes that neither he, his servants or agents, will engage in any further works for the purpose of the attached garage shown marked in green on the approved plan for DA471/07 drawing DA01 dated May 2007, noting that the proposed eastern wall which is part of the pool enclosure will be built to no more that 1.2 metres in height above the finished level of the pool. 2. Proceedings are adjourned to 28 August 2009 to allow the time for the determination of MOD151/09 lodged by the respondent (applicant in these proceedings). The respondent undertakes to lodge an amendment to MOD151/09 to delete the attached garage by 4pm Monday 3 August 2009. 3. The parties agree to expeditiously prosecute and process mod 151/09 and any appeal. 4. The parties agree to expeditiously prosecute and process Mod151/09 and any appeal. 16 In accordance with its undertaking to the Court the applicant on 3 August 2009 submitted a modification application MOD151/09 to delete the attached garage approved under the 2007 consent via the imposition of a condition.

17 On 25 August 2009 Council at its General Committee meeting resolved to approve MOD151/09 (as amended) subject to the following conditions: A. Condition 1 is deleted and replaced with the following condition: 1. Deletion of rear garage addition The two storey garage addition located to the rear of the southern elevation of the dwelling (including garage area and separate change room at ground level, media room at first floor level with associated stair case as shown on approved plans 06041DA01,DA02, DA03 dated May 2007 prepared by Noel Bell, Ridley Smith &Partners is to be deleted. All construction works associated with the two storey garage addition (including al brick work above the concrete slab) shall be demolished, with the exception of the proposed eastern wall which is part of the pool enclosure which must not be built any more than 1.2metres in height above the finished level of the pool (RL201.50). This area must be reinstated to the condition it was prior to the commencement of the works on the garage addition being undertaken, such reinstatement is to be completed within 60 days of the date this condition was imposed on the consent. An amended construction certificate must be obtained showing the deletion of the attached garage and reinstatement works required by this condition within 30 days of the date this condition was imposed on the consent. B. The following condition is inserted: 1a Rear service yard to the south of the dwelling The use of the rectangle area (8m x9.5m) adjacent to the kitchen (south -east corner of the dwelling) is for a "Paved Service Yard" as approved under DA0882/04B. Reason: To ensure compliance with development Consent 882/04B. 18 The next day, 26 August 2009, the applicant lodged modification application MOD252/09 (the subject of these proceedings) and now seeks to modify the 2007 consent to allow the construction of an attached single garage addition, including mechanical plant, sauna cellar workshop and pool store at the rear of the dwelling within the same footprint (slightly longer) as the garage structure deleted by MOD151/09 in accordance with the Court Order in the Class 4 proceedings. 19 Following notification and assessment council refused MOD252/09 on the grounds set out in its Notice of Determination dated 9 October 2009: "1. The proposed garage addition would have an adverse impact on the heritage significance of Craignairn. 2. The proposed garage addition to the rear of the existing dwelling combined with the existing freestanding triple garage results in excessive car parking (total of 4 spaces) on site. The proposed garage addition is unnecessary, visually intrusive and intrusive on the historic significance of Craignairn. 3. Unsatisfactory landscaping adjacent to the South boundary. 4. The submitted plans and documents are unsatisfactory. " 20 On 19 October 2009 the applicant lodged this class 1 appeal against council's refusal of MOD252/09, initially under section 97 of the Act and amended during the hearing to an appeal under section 96(6) of the Act. Contentions 21 The statement of facts and contentions dated 18 November 2009 (exhibit 2) describes the issues as: 1. The proposed double garage is excessive in size and building bulk and results in an unacceptable impact on the historic significance of Craignairn. 2. The proposed garage addition to the rear of the existing dwelling combined with the existing freestanding triple garage results in excessive car parking (total of 4 spaces) on the site. The proposed garage is unnecessary, visually intrusive and intrusive on the historic significance of Craignairn. 3. Unsatisfactory landscaping adjacent to the south boundary. 4. Pursuant to section 79(c0 of the EPA Act approval of the application is not in the public interest including "the proposal is the same one which occupied considerable attention of the Court under DA 409/08." 5. The submitted plans and documentation are unsatisfactory and do not comply with Schedule A of the Court's Class 1 Development Appeals -Practice Note. 22 The hearing commenced with a view of the site and surrounding area and this provided an opportunity to hear the oral evidence of the objectors including the adjoining neighbour to the east and a representative of the local historical society and the heritage experts Mr Stass for the applicant and Mr Logan for the council. 23 Following the view the matter resumed in court where the parties tendered documents and made oral submissions. The hearing was completed and after I had read the evidence I relisted the matter on 22 April 2010 and asked the parties to address me further on the issue as to whether the modified development was substantially the same as the original unmodified development having regard to the change in circumstances occasioned by the erection of the triple garage and loft under the concurrent consent on the development site since the issue of the original consent. Jurisdiction - substantially the same development 24 Before any consideration of this modification application under section 96(3) of the Act, I must be 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 before that consent as originally granted was modified (if at all)": section 96(2)(a) of the Act.

25 There is no dispute between the parties on this issue they agree that the proposed development in MOD0252/09 described in exhibit 2 as: "The erection of a garage addition (7.97m x9.36m) to the rear of the existing dwelling including a single garage (6.5m x 4m); pool equipment and A/C unit. sauna, cellar, workshop and pool store; and provision of a solar panel for heating located to the roof of the western service wing of the dwelling (panel located to the western side of the gable roof)" 26 is substantially the same development as that approval by council in the original development the 2007 consent. 27 In support of this Council relies on its assessing officer's Section 96 Application Assessment Report (tab2 of Exhibit 4) which states "The original proposal (DA0471/07) involved alterations and additions to the dwelling house, construction of a tennis court, teahouse, pergola swimming pool and landscaping works. Having regard to the extent of the works approved under the original application, the proposed modified development (including a modified garage addition to the rear) satisfies the substantially the same test." 28 Despite the parties agreement the Act requires that I must be satisfied of that fact before I have jurisdiction to deal with this appeal Substantially the same development section 96(2)(a) 29 The applicant joined with the council to make the following submissions on this issue. 30 To determine if the modified development is substantially the same development as that originally approved the council submits that I should adopt the approach taken by the Court in Morris V Leichhardt Council [2008] NSWLEC1106. In Morris the Court considered an application under section 96(6) to delete the condition of the original development consent that deleted a lap pool from the approved plans and then modify the consent to allow a lap pool. The Court was satisfied on the evidence before it in Morris that the modified development was substantially the same development as that originally approved. I accept that decision usefully sets out at paragraphs [24] to [26] of the judgment the relevant case law and the "key questions" to be asked to assist in the determination of the question posed by section 96(2)(a) it states: "(a) In Vacik Pty Limited v Penrith City Council (unreported, NSW LEC, Stein J, 18 February 1992) considered that the phrase meant "essentially or having the same essence".

(b) The majority of the Court of Appeal in Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414 , considered the word 'modify' meant to "alter without radical transformation": see 421

(c) In North Sydney Council v Michael Standley & Associates Pty Limited (1998) 97 LGERA 433 , Mason P, at 439 adopted the meaning "to alter without radical transformation" although Stein JA adopted the meaning he had used in Vacik.

(d) In Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 Bignold J analysed the authorities in relation to s 96(2)(a) and the meaning of 'substantially the same.' He said at p 309: "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 approved development." He further explained that the comparative task required comparison both in qualitative as well as quantitative terms.

31 However, apart from the useful summary of the authorities the facts in Morris are very different to the case I need to decide. In Morris the original consent contained a condition which deleted a lap pool from the approved plan. The condition did not purport to delete a lap pool approved under a concurrent consent.

32 If I apply the comparative task adopted by Lloyd J in Thomas as stated Moto Projects (No. 2) Pty Ltd v North Sydney Council, by Bignold J (at 309 [56]) I accept it includes the following : "… not merely… a comparison of the physical features or components of the development as currently approved and modified where the 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). 33 On the facts before me the evidence discloses that council issued the 2007 consent in the believe that the imposition of condition 1 effected the surrender of the approved garage structure under the concurrent 2004 consent. The fact that the applicant did not challenge this condition but instead elected to act on the 2007 consent to build his pool, tennis court and other works does not change the legality of the imposition of the condition 1. Therefore if I look to the "essence" of the 2007 consent it approved a garage structure at a time where the applicant had a concurrent approval under the 2004 consent for a garage structure. Condition 1 of the 2007 consent did not change this fact. 34 If I compare the "before and after" as the authorities' direct the essential character of what was originally approved on this heritage-listed site in the 2007 consent was a garage structure with a slightly smaller footprint than the application before me.

35 To determine if the before and after are substantially the same I am directed to ask if the proposed modification of the original development application will "alter without radical transformation" the original development consent? The answer on the facts as presented is that it will not. 36 After the issue of the original 2007 consent the applicant erected the garage structure under the existing 2004 consent on the site but that fact does not change what was approved in the original 2007 consent which is the subject of my attention.

Progress and Security submission 37 In accepting that I have jurisdiction to entertain this appeal the Council submits that it is open to me to exercise my discretion under section 96(2) to refuse the application because of the conduct of the applicant in accepting the benefit and now seeking to absolve itself from the burden of the consent. .

38 Council submits that I should apply some sort of "reverse" of the principle in Progress and Security Pty Ltd V North Sydney Municipal Council (1988) 66 LGRA236 to the facts of this case . As I understand the submission council says that because the applicant has erected the triple garage under the 2004 consent and avoided the burden purportedly imposed by condition 1 that it is appropriate in the exercise of my discretion to refuse this application.

39 Council submits that the discretion in section 96(2) extends to a consideration of the conduct of the applicant and this can overcome any issue concerning the imposition of condition 1 on the 2007 consent (which was not ever challenged by the applicant or specifically raised in this appeal).

40 However the facts of this case are not the same as Progress and Security Pty Ltd V North Sydney Municipal Council (1988) 66 LGRA 236 which dealt with section 102 of the Act (then the relevant modification power) and concentrated on the conduct of an applicant who by his conduct accepted the benefit of the development consent and then sought belatedly to avoid the burden imposed by the consent. I am unclear (based on council's comments about the legality of condition 1) what burden council says the applicant is seeking to avoid?

41 I am guided by Jagot J's comments on discretion in Arkibuilt V Ku- ring-gai Council [2006]NSWLEC at [69] wherein she refers to the Court of Appeal decision in Fairfield City Council V N&S Olivieri Pty Ltd [2003]NSWCA 41 Cripps AJA (with whom Spigelman Cj and Santow JA agreed) observed (at [82]to [84]0 "that it was one thing to assert that a party who has accepted the benefit of a transaction must accept its burden, and another to conclude that a condition not authorise by law cannot be challenged if development is carried out . Delay may be a relevant discretionary factor, but there is difficulty in attempting to apply any "benefit /burden doctrine in planning law."

42 While there is discretion in section 96(2) it is not unfettered because section 96(3) directs me to consider the relevant matters in section 79C(1) of the Act in my determination of an application under section 96(2). In my opinion the discretion in section 96(2) generally does not extend to a consideration of the conduct of a party in a modification application. I do not accept the burden and benefit analysis of Progress and Security and reject the council's submission on this issue. Merit assessment under section 96(3) 43 The statement of facts and contentions filed on 18 November 2009 sets out the relevant facts and planning controls for the site. I have read the council's assessment reports in respect of the application including the written objections received at the time of notification which were addressed further by some of the objectors at the hearing.

44 The principle merit issue raised by the documentary and oral evidence during the hearing is the affect of the modified development on the heritage item in its setting. This is because Clause 61D(2) of the KPSO requires that I consider; "…The extent to which the carrying out of the proposed development would affect the heritage significance of the item in any stylistic or horticultural features of its setting." 45 Council submits that such a consideration includes the affect of the modified development on an appreciation of the heritage dwelling "in the round" or being set in the "centre of a large site" from the public area and from the curtilage within the site.

46 This was a focus of the heritage experts' evidence and I had the benefit of understanding that evidence during the hearing onsite because the experts spoke to their reports and explained to me the heritage significance of this property and its context in the local area while we stood on the pavement in Burns Road and Cleveland Street and within the site. Both experts agreed and I observed that the principle-viewing place for the heritage item is from the front gates at the driveway off Burns Road and to a lesser extend from the pavement outside the site at its north/eastern corner on Burns Road but is hardly visible behind the triple garage and from Cleveland Street.

47 Also relevant to an appreciation of the heritage item in its setting and 'in the round' is the proximity of the two lot subdivision at the rear of the site which contains two dwellings. I accept the evidence of the experts that the ability to appreciate the heritage item is already impacted on by the approval of the subdivision and the houses at the southern boundary.

Heritage evidence 48 Mr Stass gave evidence on site consistent with his comments in the joint report (Exhibit 3) that the proposed development will not adversely affect the heritage significance of the heritage item. In his opinion the revised garage proposal has a "substantially reduced overall profile to further limit its visibility and that the design is appropriately subservient to and visually detached from the main building to overcome any concerns that it will dominate visually either from the public domain or from the curtilage of the item." In his opinion the views of the proposed development from Cleveland Street are reduced to a minimum and onsite the council agreed with this assessment. The concrete slab already exists at the rear of the property where the proposed garage is to be erected and Mr Stass gave evidence that it would adequately provide for a single car to reverse out of the garage and leave the site in a forward direction. 49 In relation to any adverse affect on the significant views of the principal house from Burns Road, he said they would remain "substantially unaltered" if the proposed development were approved. His evidence is that the main views of the house have been historically from the northwest where it can be seen along the current driveway and from Cleveland Street where it is partially screened by native vegetation. In his view the principle massing of the house is designed to be viewed from this NW corner location. 50 Mr Stass' evidence with respect to the viewing of the heritage item in "the round in its setting" is that the proposed works will have little impact on such a viewing.

51 Both heritage experts invited me to have regard to the comments made by the Court in the previous appeal [12above] concerning a not dissimilar development application for a garage structure on the same site. However, I must determine this case based on the evidence before me in this appeal and attempts to massage comments from an earlier judgement to the facts in this case is unhelpful. Having said that the council tendered the sketch (exhibit 6) developed in the earlier appeal as a possible amendment to resolve this matter. However, the applicant in no uncertain terms maintained his objection to that design option. Mr Stass supported the applicant's rejection of this alternate design on the basis that it would have a more severe adverse impact than what is proposed because of its incompatibility with the established design character of the buildings on the site. He goes on to say "that garage structure would be equally visible from the south east section of the cartilage of the heritage item and would appear to be out of scale and unsympathetic to the existing structure."

52 I agree with Mr Stass' assessment of the impacts of the alternate design on the heritage item. In particular, the fact that it would be "equally as visible from the south east corner of the site" which as Mr Logan says is the real problem with this current design.

53 I do not accept Mr Stass' evidence that it will still be possible to appreciate the main building as a detached structure within the curtilage. I do not accept that the level of impact in the current application is 'largely overstated by council' and will not significantly change any public and private perception of the heritage significance of the heritage item. It is nonsense to submit as justification of this application the fact that council has approved larger structures in the past with more adverse impacts. I accept the public concern to maintain the heritage significance of the Craignairn as raised in the written objections received by council in respect of this application.

54 I agree with Mr Logan's expert opinion that the extension of the building at the rear would be perceived from the public domain at the north eastern corner of the property at Burns Road and within the site particularly on the eastern boundary. Mr Logan's evidence is that the latest design is a structure that occupies the full width of the existing ground slab under a large hipped roof form. I accept that the combination of the wide footprint and high pitched hipped roof would result in a bulky form across the rear of the residence.

55 I accept Mr Logan's evidence that the adverse impact of this modified development within the grounds of Craignairn is sufficient reason to refuse the application. I accept his concern that "the wide footprint of the proposed structure from a heritage viewpoint has an adverse impact on the significance of the heritage item as a structure that was designed to be viewed in the round." I accept his expert opinion that it is important to avoid hemming -in the rear as this would detract from an understanding that it was deliberately sited in the centre of a large block with generous setbacks from all four boundaries. In order to achieve this, any proposed addition should retain as open as possible a setting at the rear. If the addition as proposed is constructed I accept that that setting at the rear of the house and the heritage significance of the heritage item would be further diminished.

56 With respect to the other contentions raised by the council I make the following comments. With respect to contention 3 I am satisfied that the site has adequate parking provided by the existing triple garage structure on the Cleveland Street boundary. I accept the evidence of Mr Logan that it would be undesirable from a heritage point of view to allow additional parking to the rear of Craignairn as proposed. The fact that this site is identified as a heritage item of local significance must be weighted against the desires and needs of the applicant for additional parking.

57 I have dealt with the public interest in my judgment and in view of my refusal of the application I do not need to address further contentions 3 and 4.

58 In the circumstances of this case based on the evidence and the relevant matters in section 79C(1) including section 61D(2) of the KPSO, and the suitability of the site for the development the application is refused and I make the following orders; 1. The appeal is dismissed. 2. The modification application number MOD252/09 for alterations and additions to erect a single garage addition (7.97m x9.36m) to the rear of the existing dwelling, including a single garage (6.5mx4m) pool equipment and AC unit, sauna, cellar workshop and pool store at the property known as Craignairn at 37 Burns Road is determined by refusal. 3. The exhibits are returned.

      Susan Dixon
      Commissioner of the Court
      ljr

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