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.
19 The effect of s 96(4) is to make it clear that when considering the section 96 application the consent authority is not granting development consent.
20 The parties agreed that for the reasons set out in Lido Real Estate Pty Ltd & Anor v Woollahra Council NSWLEC118 and because of the operation of s 96(4) of the EPA Act that an objection under State Environmental Planning Policy No 1 is not required to vary the provisions of LEP 2001.
21 Parramatta Development Control Plan 2001 (DCP2001) was in force at the time the original application was assessed and determined and when the s96 application was lodged. Of relevance to the application are the design element guidelines, access for people with disabilities, landscaping/soft soil and private open space provisions.
22 Parramatta Development Control Plan 2005 (DCP2005) came into effect on 14 December 2005 after the s96 application was lodged. DCP 2005 replaced DCP 2001 but was not raised by the parties as a relevant matter for consideration.
The history of the proposal
23 A detailed history of the application is contained in the Statement of Basic Facts and the Statement of Evidence of Ms K Lafferty, council's planning expert. In summary, the facts of relevance to the application are:
· Development application 923/2002 was lodged on 19 April 2002 to demolish the existing three dwellings and construct a multi unit housing development containing 22 dwellings above basement car parking. The application comprised 18 x 3 bedroom and 4 x 2 bedroom (plus study) dwellings with basement car parking for 42 cars, including 6 visitor spaces.
· The application was approved subject to conditions on 31 December 2002. The approval stated that the "development application including stamped plans has been granted consent subject to the following conditions." The stamped plans refer to Drawing Nos: 0202 - 1C, 2D, 3E, 4C, 5C, 6C and 7D prepared by Arttech Design and Construction dated 29 March 2002 and the landscape plan 02.716 LSK 01 prepared by Greenplan dated 16.09.02 (exhibit 6). The application included a typical colour scheme and photomontages, but these are not stamped as part of the approval.
· On 27 April 2004 a private certifier issued the Construction Certificate (C-03-279).
· A development application (1339/2002) for strata subdivision of the development into 22 lots was approved under delegated authority on 28 January 2005.
· A s96 application (923/2002/A) was lodged on 27 September 2004 seeking to amend the approved development. The modifications included deletion of the lift, deletion of the party wall in the roof between dwellings, relocation of the basement stair, the raising of the finished floor level over the basement access ramp by 500mm and the addition of a caretakers toilet in the basement. The works for which approval was sought had been constructed. The s96 application was refused under delegated authority on 18 February 2005.
· The current s96 application (923/2002/B) was lodged on 13 May 2005. The application sought "alterations and amendments to the approved plans" as detailed in an attached letter by Mr K Burrell, the applicant's town planning expert. The works included those for which approval had been sought under the earlier s96 application as well as additional works that had been constructed including an increase in the floor area of attic bedroom in townhouses 1-7, 9-15 and 20-22 and changes to the roof and elevations of these dwellings. The s96 application proposed that a new condition be added to the consent which referred to the amended drawings which incorporated the proposed changes. At the time of the hearing, Council had not determined the application.
· The applicant lodged a Class 1 appeal against the deemed refusal of the s96 application on 7 October 2005. The list of proposed modifications was amended to reflect the proposal as built and the experts agreed on the extent of amendments (exhibit E) shown in the "work as executed" plans being Drawing Nos 0202 - 1E, 2F, 3G, 4E, 5E, 6E, 7E and 8E prepared by Arttech Design and Construction (exhibit D).
· Council commenced Class 4 proceedings on 4 November 2005.
· The Class 1 appeal was heard on 2 February 2006. On the day, I provided preliminary findings on a number of the proposed changes, some of which required further changes to the proposed drawings. The appeal was adjourned to enable these changes to be made and for traffic evidence to be obtained in relation to compliance of the basement ramp with AS2890.1.
· At a telephone mention on 17 February 2006 I indicated that while the majority of the changes sought under the s96 application had an acceptable impact and could be approved, the third storey increased the bulk of the proposal and was unacceptable in its current form. The applicant requested the opportunity to investigate amendments to the third storey. Council did not oppose this course of action. The council and the applicant were unable to reach agreement on changes and no plans were submitted which proposed changes to the third storey.
· The applicant then sought leave to amend the s96 application to seek approval for the items which I had indicated could be approved. Council did not oppose this course of action. Talbot J directed the plans for which approval was sought be filed and served by 7 April 2006. A further hearing was held on 21 April 2006. Council indicated that there were still inconsistencies in the plans and that the proposed changes and approved plans could not operate as one approval. The applicant then sought approval for the plans which were originally submitted as part of the s96 application (exhibit D).
The issues
24 The Statement of Issues before the Court originally contained nine issues, however, as the hearing evolved a number of issues raised by council were resolved by the experts or by further amendments. The significant issue in the proceedings related to whether the change to the upper level would have an acceptable streetscape impact.
The Evidence
25 Mr K Burrell, for the applicant and Ms K Lafferty for the council provided town planning evidence. Mr L Marshall, for the applicant and Mr R Searle, for the council provided traffic evidence on the basement access ramp. Mr Skinner, of 1 Fitzgerald Road gave evidence on site. His main concern was the privacy impact on his back garden from the balconies which were not part of the original approval.