Austcorp No 459 Pty Limited v Baulkham Hills Shire Council

CITATION : Austcorp No 459 Pty Limited v Baulkham Hills Shire Council [2002] NSWLEC 90 APPLICANT Austcorp No 459 Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10007 of 1999 CORAM: Cowdroy J - KEY ISSUES: Development Consent :- modification - whether development is substantially the same as that for which approval was granted Baulkham Hills Local Environmental Plan No 1991 LEGISLATION CITED: Draft Baulkham Hills Local Environmental Plan - Amendment No 98 Environmental Planning and Assessment Act 1979, s 76A, s 78A, s 79C, s 81A, s 96, s 109C, s 124 Environmental Planning and Assessment Regulation 2000, Pt 4A, cl 145, cl 146, cl 147 Fernance Family Holdings Pty Ltd v Newcastle City Council (2000) 110 LGERA 66; Hope v The Council of the City of Bathurst (1979-1980) 144 CLR 1; Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404; CASES CITED: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414; Willoughby City Council v Dasco Design and Construction Pty Ltd and Anor (2000) 111 LGERA 422; Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 DATES OF HEARING: 06/02/02, 07/02/02, 06/05/02, 07/05/02, 08/05/02 DATE OF JUDGMENT: 06/07/2002

18. In Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240, Talbot J determined that the provisions of s 96 could apply to a development which has already been carried out. Such decision was reached after considering the inter-relationship between s 76A and s 124(3)(a) of the EP&A Act. The provision of s 76A(1) (contained in Part 4) constitutes a prohibition on the carrying out of development where consent is required. The remaining subsections of s 76A do not detract from such prohibition.
19. Section 124 of the EP&A Act empowers the Court to grant orders restraining a breach of the Act. Where a breach of the EP&A Act has occurred by reason of the failure of a person to obtain consent required under Part 4 the Court is empowered to adjourn those proceedings for the specific purpose of enabling the defendant to make a development application under Part 4 to obtain that consent (s 124(3)).
20. In Windy Dropdown, Talbot observed that s 76A and s 78A (making of an application for consent) "…clearly operate in the context of a prospective proposal whereas a modification of consent pursuant to s 96 operates retrospectively by dint of s 96(4). A modification may or may not alter some aspect of the development itself. That some degree of change is contemplated is recognised by the constraint in s 96(1A) and (2) that the development to which the consent as modified relates must be substantially the same development".
21. Section 96(1A) is the only provision contained in the EP&A Act applicable to modification of a consent. Sub-par (a) of s 96(1A) appears to relate to prospective changes when it speaks of "the proposed modification". However such words are equivocal. It could mean the prospective development per se, that is, development yet to be carried out. Alternatively it could be a reference to the modification which is being sought from the Court by virtue of the s 96(1A) application. As a matter of statutory construction the purpose of the legislation is to be ascertained (Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 per McHugh JA).
22. Unless the latter construction is adopted, s 124(3) could never have any application in respect of development already carried out without the requisite Part 4 approval. Since such result is clearly not intended by Parliament the Court determines that the provisions of s 96(1A) can apply in respect of development carried out in the absence of development consent. The Court accordingly follows the decision of Talbot J in Windy Dropdown, and of Bignold J, in Willoughby City Council v Dasco Design and Construction Pty Ltd and Anor (2000) 111 LGERA 422. Is the building the "same development"?
23. When the building as constructed is compared to the consent plans which were approved by the Court the differences are substantial and include: i. deletion of the lower basement level of car parking; ii. relocation of two wings of the building to be 2 m closer between the opposing faces of bedrooms and 900mm closer in other parts; iii. reconfiguration of external openings and architectural detailing; iv. redesign of roof form; v. deletion of swimming pool; vi. redesign of vehicular ramp not in accordance with the council's requirements and as a result footpath cross-fall at the top of the ramp is sloping down towards the land rather than down towards the gutter; and vii. raising the top level of the stormwater detention tank by 2.5 m above ground level instead of finishing at natural ground level with landscaping.
24. There have been numerous decisions both of this Court and of the New South Wales Court of Appeal concerning the test to be applied to determine if the development is "the same". In Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414 the Court when considering the equivalent to s 96 in the unamended EP&A Act drew a distinction between a matter of substance compared to a matter of mere detail.
25. In Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298, Bignold J at p 309 observed as follows:- 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.

(2002) 122 LGERA 205

(2000) 110 LGERA 66

(1987) 11 NSWLR 404

(1999) 106 LGERA 298

(1998) 43 NSWLR 468

(1984) 3 NSWLR 414

(2000) 111 LGERA 422