B.J Eldridge & M.E Vincent trading as Crossbones Gallery v Penrith City Council

Land and Environment Court (NSW)|2019-07-03

Judgment

COMMISSIONER: B.J Eldridge & M.E Vincent trading as Crossbones Gallery (the Applicant) has appealed the approval of their application to modify a development consent granted on 28 December 2017 by Penrith City Council (the Respondent) for DA 16/0495 (the Consent).
The proposed development is located at Unit 18 of 49-51 York Rd, Jamisontown (the Subject Site). Opposite the Subject Site, across York Rd, is Jamison Park, which includes the playing fields the Penrith District Netball Association.
The Applicant's development, for which consent was granted by the Respondent Council, is for a business which the Applicant submits is an "integrated business" with: 1. the dominant use of the Subject Site being a specialised production facility for certain artists of Western Sydney, known as Crossbones Gallery. This area facilitates collaboration between artists and the exhibition of artworks related to the so-called 'tattoo culture'. The artists' use of the space would give rise to art in a variety of media including digital media and works on canvas and skin. 2. an ancillary use being a tattoo studio within the Crossbones Gallery. This use occupies some 30m2 of the 330m2 area of the Subject Site.
The dominant, light industry, use described above at [3(1)] is permissible on the Subject Site, with consent, under the provisions of Penrith Local Environmental Plan 2010 (PLEP).
The tattoo studio component of the current, consented, development is only permissible, within the Subject Site's B5 zoning, as an ancillary use to the dominant light industry use. It was the agreed position of the Parties at the hearing that the tattoo studio would otherwise be categorised as a business premises under the provisions of PLEP, and a business premises is a prohibited use of the Subject Site under its B5 zoning.

Environmental Planning and Assessment Act 1979

The modification application has been made under s 4.55(1A) of the EP&A Act, which provides as follows: (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.
The requirements of s 4.55(3) and s 4.55(4) are also relevant to this appeal, and provide: (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.
Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest.
Section 4.15(3A) of the of the EP&A Act further provides that: If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority: (a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards - is not to require more onerous standards with respect to that aspect of the development, and (b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards - is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and (c) may consider those provisions only in connection with the assessment of that development application.
Finally, s 4.3 of the EP&A Act, concerning development that is prohibited, provides: If an environmental planning instrument provides that: (a) specified development is prohibited on land to which the provision applies, or (b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land.

Penrith Local Environmental Plan 2010

Development on the Subject Site is subject to the provisions of PLEP. The following provisions of PLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of PLEP. The Subject Site is zoned B5 Business Development Mixed Use, and under the provisions of cl 2.3 of PLEP, the objectives of this zone are to: • enable a mix of business and warehouse uses, and specialised retail premises that require a large floor area, in locations that are close to, and that support the viability of, centres. • maintain the economic strength of centres in Penrith by limiting the retailing of food, groceries and clothing.

Penrith Development Control Plan 2014

The Penrith Development Control Plan 2014 (PDCP) has the following aims: "1. Review and amend the contents of Council's existing DCPs so that they reflect contemporary planning practices; 2. Incorporate the amended/updated provisions of the existing DCPs and codes together with new planning provisions on contemporary and other planning issues into a single DCP; and 3. Build upon MLEP 2011 by providing detailed objectives and controls for development."
The following sections of PDCP are of particular relevance in this appeal: 1. Section C10 Transport, Access and Parking, which has the following objectives: "a) To integrate transport planning and land use to promote sustainable development and greater use of public transport systems; b) To minimise the impacts of traffic generating developments and manage road safety issues; c) To ensure that access paths and driveways are integrated in the design of developments and minimise impacts on road systems; d) To provide appropriate parking for all development whilst promoting more sustainable transport use; e) To facilitate connections and accessibility for those using non vehicle transport by providing appropriate facilities to improve amenity and safety; f) To facilitate bicycle connections and provide appropriate bicycle facilities to improve amenity and safety; and g) To ensure that access is provided for all people with diverse abilities." 1. Section 10.5 deals specifically with parking, access and driveways, and has: 1. the following additional objectives: "a) To ensure the provision of an appropriate number of vehicular spaces having regard to the activities present and proposed on the land, the nature of the locality and the intensity of the use; b) To require parking areas to be designed and constructed in accordance with the Australian Standards for efficient and safe vehicle circulation and parking; c) To reduce pedestrian and vehicle conflicts on development sites. d) To facilitate an appropriate level of on-site parking provision to cater for a mix of development types; e) To minimise the visual impact of on-site parking;" 1. the following control (b) in relation to the provision of parking spaces that is of relevance in this appeal: "For any proposed development, Council will require the provision of on-site car parking to a standard appropriate to the intensity of the proposed development as set out in Table C10.2 below." 1. Table C10.2 provides that for an industrial premises, such as the Subject Site in this appeal, including ancillary offices, the required level of parking to be provided is: "One space per 75m2 of gross floor area, or 1 space per 2 employees, whichever is the greater."

Contentions

At the commencement of the hearing, the Parties confirmed that the contentions between them in this appeal, and the key questions to be resolved, fell into two broad categories, as follows: 1. Legal questions, in relation to which the principal questions are: 1. is the Applicant's tattoo studio permissible? 2. would the Applicant's tattoo studio remain permissible (ie ancillary to the gallery) if Condition 6 were deleted, as proposed by the Applicant? 3. would the Applicant's tattoo studio remain permissible (ie ancillary to the gallery) if Condition 6 were amended as proposed by the Applicant? 4. if the Applicant's development remained permissible with the deletion or amendment of Condition 6, would the Applicant's modification application be substantially the same development as the development for which consent was originally granted, as required under s 4.55(1A) of the EP&A Act? and 5. would the Applicant's modification application, if approved, have minimal environmental impact? 1. Merits questions, in relation to which the principal question is: 1. Does the proposed modification application satisfactorily address the applicable provisions of PDCP concerning parking?
I will address these questions below, ad seriatum.
The Court's consideration of these questions was assisted by the evidence of the Parties' expert planners: 1. Mr Warwick Stimson, for the Applicant, and 2. Ms Jane Hetherington, for the Respondent.

Is the Applicant's tattoo studio permissible?

The Subject Site is zoned B5 Business Development. Within this zone, the Applicant's use of the Subject Site for purposes of light industry is permissible, with consent.
However, development for the purposes of a business premises is prohibited. As discussed above at [5], should the Applicant's tattoo studio not be categorised as an ancillary use, it would otherwise be categorised as a business premises, and so would be a prohibited development under the B5 zoning of the Subject Site.
The development consent granted to the Applicant by the Respondent Council on 10 February 2017, in response to development application DA 16/0495, authorises the fit-out and use of the Subject Site for light industry purposes with an ancillary use. The light industry component consists of a gallery within which the Applicant undertakes activities concerned with computer-based digital media, web design, business branding, signage development, and signwriting. The ancillary use is the tattoo studio.
The Applicant's Statement of Environmental Effects (SEE), submitted with DA 16/0495, characterises this light industry use as a specialised production facility for certain artists of Western Sydney that enables these artists to collaborate and exhibit artworks consistent with a tattoo culture theme, and in which the tattoo art is expressed through a variety of media, including both as art on canvas and art on skin.
The Applicant submits that the tattoo studio element is an integrated component of the broader light industry business and, as such, is ancillary to it as the creation of tattoos on skin represents one media, amongst many, through which the tattoo artists of Western Sydney express themselves.
In granting consent to the Applicant's DA 16/0495, the Respondent Council did so subject to conditions including, amongst other things, a condition, referred to in these proceedings as Condition 6, which limited the scale and intensity of the tattoo studio operations within the Applicant's use of the Subject Site.
Condition 6, when imposed by the Respondent Council, reflected aspects of the Applicant's development application. The proposed development was described within the Applicant's SEE, and that description characterised the development for which the Applicant had sought consent.
Given that the Respondent Council granted consent to the Applicant's light industry use of the Subject Site, the Respondent Council must have formed an opinion of satisfaction, based on its inclusion of Condition 6, that the tattoo studio use within the dominant light industry use would remain ancillary to the dominant use for which it had granted consent. I have not enquired as to the reasons relied upon by Council in reaching this opinion of satisfaction, as this was not required of me in this appeal.
Condition 6 of the grant of consent provides as follows: "The approved operating hours for the light industry component are from 7 AM to 10 PM Mondays to Sunday's. The approved operating hours for the ancillary tattooing component of the business are from 5 PM to 10 PM Mondays to Sundays. There are to be a maximum of two staff on site at any one time. There is to be a maximum of 3 to customers per day."
Having considered the context of the Respondent Council's grant of consent to the Applicant's development application, including the imposition of Condition 6, I am satisfied the tattoo studio component of the consented development, as conditioned, is permissible as an ancillary use to the Applicant's dominant use of the Subject Site.

Would the Applicant's tattoo studio remain permissible as an ancillary use to the gallery if Condition 6 were deleted as proposed by the Applicant?

As noted above, the Applicant in these proceedings has sought deletion of Condition 6 imposed by the Respondent Council as part of its grant of consent. A consequence of the deletion of Condition 6 would be that the limitations imposed upon the operation of the Applicant's tattoo studio component by the Respondent Council under its grant of consent would be removed.
The removal of the limitations provided by Condition 6 would enable the tattoo studio to operate in a manner that would not be limited, other than by hours of operation, with the consequence that the scale and intensity of the tattoo studio operation would increase. It was the submission of the Applicant at the hearing that its intent in seeking deletion of Condition 6 was indeed to increase the scale and intensity of the tattoo studio operation.
The deletion of Condition 6 would enable the operating hours of the tattoo studio to increase from five hours per day to 15 hours per day, that being the approved hours of operation available to the dominant use of the Subject Site. This would represent a threefold increase in the hours of operation for the tattoo studio.
The deletion of Condition 6 would also remove restrictions on both the numbers of staff that would be able to operate within the tattoo studio, and the number of customers per day that would be able to utilise its services.
The Respondent submitted that there are certain legal principles that should guide the Court in identifying whether the deletion of Condition 6 would cause the tattoo studio use to constitute an independent, and so prohibited, use of the Subject Site under the provisions of PLEP.
The Respondent drew the Court's attention to the findings of Molesworth AJ in Penrith City Council v Konemann (2017) 225 LGERA 16; [2017] NSWLEC 79 (at [82]) in which his Honour had described the question as to whether a use was ancillary to a dominant use as one of 'fact and degree'.
The Respondent also submitted that the findings of Basten JA in Toner Design Pty Ltd v Newcastle City Council (2013) 198 LGERA 203; [2013] NSWCA 410 (hereafter referred to as Toner) were of relevance in this appeal, and in which his Honour (at [10] and [11]) had said that: "10 … for a development to be 'ancillary to' another development it must not merely coexist with, but must serve the purposes of, the other development …", and "11 … the concept of 'ancillary to' involves matters of size and scale. Thus, two developments each of which was of significant scale in its own right might not demonstrate the relevant relationship of one being dominant and the other being subservient thereto. Examples are not necessarily helpful because the factors to be taken into account will vary as between cases …"
In addition, during the hearing, the Parties' expert planners agreed that it was appropriate that the tattoo studio should be the subject of a condition of consent that would restrict the level of the Applicant's tattoo studio operations, to assure that it would remain an ancillary use to the dominant use of the Subject Site.
Having considered the submissions of the Parties and the evidence of the Parties' expert planners, together with the likely consequences of deleting Condition 6 described above at [34] and [35], I have concluded that the deletion of Condition 6, is not appropriate and should not be approved.
In my assessment, the deletion of Condition 6 would result in an increase in the level of operation of the tattoo studio, that could, and indeed is likely to, give rise to an independent use of the Subject Site for the purpose of a tattoo studio based on the potential scale and intensity of that use, including that the use could be for commercial rather than for artistic purposes.
At that point, and consistent with the findings of Basten JA in Toner, the tattoo studio would no longer remain ancillary to the consented light industry use of the Subject Site, that being a gallery facilitating the interactions of artists, as is required under the B5 zoning of the Subject Site. That ancillary use is otherwise assured by the Applicant's compliance with Respondent Council's imposed Condition 6.
Retention of Condition 6, as sought by the Respondent Council in these proceedings, would obviate this risk, and assure that the tattoo studio operation would remain an ancillary use of the Subject Site, and so it would remain permissible in the applicable land use zone.
The Applicant had submitted that there would be no impediment to the Court approving their modification application on the basis that it would give rise to a prohibited use, and based this submission on the finding of Lloyd J in Gann v Sutherland Shire Council [2008] NSWLEC 157 (Gann) at [18]-[19], at which his Honour held that the previous s 96 of the EP&A Act (now s 4.55) is a stand-alone provision of the Act that permits a development consent to be modified to allow development which would otherwise be prohibited (in that case, by a development standard).
The Applicant further submitted that the Court of Appeal had arrived at the same conclusion in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; (1998) 97 LGERA 433 (Michael Standley) at [481] when considering an application to modify a consent under the former s 102 of the EP&A Act.
However, I do not accept this submission from the Applicant, because the findings of both the Court of Appeal in Michael Standley, and his Honour in Gann, related to the Court's powers to grant consent to a modification application that would breach an applicable development standard within an environmental planning instrument rather than one that would consent to a development that was not permissible under the relevant zoning of the land.
This conclusion is confirmed by Lloyd J of Gann at which he provides specific examples of the development standards in the relevant local environment plan in relation to which his Honour states at [19] that there is no legal impediment to the grant of consent under a modification application made under the former s 96 of the EP&A Act. Those development standards are identified by his Honour as concerning building height, gross floor area and landscaped area.
In consequence, I have concluded that, consistent with the submissions of the Respondent, the deletion of Condition 6, and the removal of the restrictions within it that assures that the tattoo studio remains an ancillary use that is permissible, is not appropriate.

Would the Applicant's tattoo studio remain permissible as an ancillary use to the gallery if the Applicant's Condition 6 were amended as proposed by the Applicant?

As previously discussed above at [39], the Parties' expert planners agreed that it was appropriate that the tattoo studio should be the subject of a condition of consent that would restrict the level of the Applicant's tattoo studio operations, and so assure that this would remain an ancillary use to the Applicant's dominant use of the Subject Site.
Consistent this evidence, and in recognition of the need to consider further options should I find, as I have, that the deletion of Condition 6 is not appropriate, the Applicant has proposed an alternative to deletion of Condition 6 drafted by its expert planner, Mr Stimson.
The Applicant's alternative proposal is that Condition 6 be amended to read as follows: "The approved operating hours for the premises are from 7 AM to 10 PM Mondays to Sundays. The tattoo operations are to be limited to the tattoo area. Tattooing is to be by appointment only. The appointments are to be stated so that a tattoo artist cannot take consecutive appointments without a 15 minute break in between. During Saturdays or Sundays on which any netball games are scheduled at Jamison Park there are to be a maximum of six staff on-site at any one time."
The expert planners differed in their evidence in relation to this proposed, amended, Condition 6, as follows: 1. Mr Stimson supported the proposed amended Condition 6, and said that, in his opinion, the limitations provided within it were sufficient to ensure that the tattoo studio would remain an ancillary use to the Applicant's dominant use; 2. Ms Hetherington did not agree with Mr Stimson, and said that, in her opinion: 1. the restrictions within Condition 6, as imposed by the Respondent Council, ensured that the scale and intensity of the tattoo studio operations were a minor and insignificant component of the Applicant's use of the Subject Site; 2. in order to ensure that the tattoo studio remained an ancillary use to the Applicant's dominant use, it was necessary to impose restrictions that should include limits to the number of appointments and customers of the tattoo studio business; 3. it had not been demonstrated that the tattoo studio, as it would operate under the proposed amended Condition 6, would not have unacceptable impacts on other tenancies within the same complex as the Subject Site, notably in terms of use of on-site parking; 4. the imposed Condition 6 was not onerous and had been based on information provided by the Applicant within their development application and which the Applicant had relied upon to establish that the tattoo studio was an ancillary use.
The Respondent submitted that it was possible that, even with the imposition of Condition 6, the tattoo studio was not an ancillary use of the Subject Site because it did not serve the Applicant's dominant light industry use of the site.
Having considered the submissions of the Parties, and the evidence of the planning experts, my assessment of this proposed condition, and its implications in relation to the tattoo studio, are as follows: 1. the increase in operating hours from five hours per day to 15 hours per day would represent at least a threefold increase in the hours, and so scale, of operation of the tattoo studio; 2. notwithstanding that the Applicant's proposed alternative condition provides that there must be a 15 minute break between appointments, the proposed condition provides no firm limitation as to the number of seats or beds that would be provided for the application of tattoos within the tattoo studio, nor does it limit of the number of clients that would be serviced at the tattoo studio during the course of any day; and 3. the Applicant's proposed alternative condition provides no limitation as to the number of staff that would operate within the tattoo studio.
Based on this assessment, and having considered the submissions of the Parties and evidence of the expert planners, consistent with the evidence of Ms Hetherington and the submissions of the Respondent, I am also not satisfied that the Applicant's proposed amended condition would be sufficient to limit the operation of the tattoo studio such that it would remain an ancillary use to the dominant light industry use approved under the consent granted by the Respondent Council.
Consequently, I do not accept that the Applicant's proposed amended Condition 6 should be adopted in place of the Condition 6 imposed by the Respondent Council.

Is the Applicant's modification application substantially the same development as the development for which consent was originally granted?

As noted previously (see above at [9]), this is an appeal against the Respondent's refusal of a modification application made pursuant to s 4.55(1A) of the EP&A Act, and under that section of the Act, the Court 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 and before that consent as originally granted was modified (if at all).
Satisfaction on this point enlivens the power for the consent authority, or the Court on appeal, to grant consent to the application that is the subject to the appeal.
The specific provisions of s 4.55(2) of the EP&A Act were provided above at [12].
The statutory test in s 4.55(2)(a), requiring that the consent authority be satisfied as to whether the development modification is substantially the same development as the development for which consent was originally granted, has been helpfully summarised in a recent judgment by his Honour, Moore J, in the matter of Trinvass Pty Ltd V The Council of the City of Sydney [2018] NSWLEC 77 (hereafter referred to as Trinvass).
The following paragraphs [22] to [28] of Trinvass are of greatest relevance in this appeal: "[22] The starting point for any consideration of whether or not a development modification will result in a development that is substantially the same is that - as discussed by Stein J in Vacik Pty Ltd v Penrith City Council, unreported, 24 February 1992 (Vacik) - his Honour observed that the Applicant for modification bears the onus of satisfying me that the proposed development as modified will be substantially the same. [23] Those remarks of his Honour are consistent with those of the Chief Judge in Australian Protein Recyclers to which I have earlier adverted. In Vacik, his Honour went on to say - and to sound the cautionary note - that it was not appropriate simply to say that the nature of the development - in that case an extractive industry - if amended would be the same use and would therefore be substantially the same development. [24] Stein J went on to say that it was necessary to consider whether the proposed modified development would be essentially or materially or having the same essence as that which had been originally approved. [25] These comments by his Honour in Vacik were endorsed by the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 (Michael Standley) where the learned President endorsed, at 475, the sentiments expressed by Stein J in Vacik. [26] At the same time, the President also explained - also on 475 - that the process of permitting modification of a development consent is one which should be regarded as beneficial and facultative, notwithstanding the onus of proof relying on the Applicant. Although endorsing the view of Stein J in Vacik, the Court of Appeal in Michael Standley did not in any way set any further test for assessing whether the development was substantially the same or not. [27] However, in 1999, Bignold J gave a decision in Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 (Moto), where his Honour, after dealing with the facts of the proposed modification development, went on to say, at [55] and [56]: 55 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. I interpolate that the position now is as required by s 4.55(2)(a) that I must be satisfied that it is essentially or materially the same as the development for which consent was originally granted. That, although differing somewhat from what his Honour described, causes no particular difficulty in the present circumstances. His Honour then went on to say: 56 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). [28] That test - that is a two-stage test of considering the proposed modified development - is that which is currently required to be addressed."
I draw from these paragraphs that: 1. the Applicant seeking the modification bears the onus of satisfying me that the proposed development as modified will be substantially the same (Vacik); 2. the process of permitting modification of a development consent is one which should be regarded as beneficial and facultative, notwithstanding the onus of proof relying on the Applicant (Michael Standley); 3. the result of a comparison between the development, as currently approved, and the development as proposed to be modified must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development (Moto); 4. 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) (Moto).
As previously noted in this judgement, the Applicant's proposed deletion or modification of condition 6 would treble the operating hours of the tattoo studio component from five hours to 15 hours.
Additionally, both the deletion of Condition 6, or its amendment as proposed in the alternative by the Applicant, would remove the limits currently imposed by Condition 6 in relation to staff and client numbers on any day, other than in relation to days on which netball games were scheduled for play at Jemison Park.
The removal of the limitations to, and the expansion of operating times for, the tattoo studio together create circumstances in which the scale of the operation of the tattoo studio would, in my assessment, undoubtedly increase.
However it is not clear, based on the evidence available to me during the hearing, the extent to which the operations of the tattoo studio would increase. Nor is it clear at what point the tattoo studio operation would change from and ancillary use to an independent use as the scale of the tattoo operation increased.
Consequently, while Applicant has confirmed that the area within which the tattoo studio operation is to be undertaken would remain unchanged from its present area of 30m², I am unable to be satisfied as to: 1. the extent to which the tattoo operation would increase over time; and 2. the point at which the operation of the tattoo studio would change in nature from being an ancillary use to an independent use.
Given these uncertainties I am unable to be satisfied that the deletion or amendment of Condition 6, as proposed by the Applicant, would result in a development that was, from a quantitative or qualitative perspective, substantially the same as that for which consent was granted and before that proposed development modified.
As a consequence of my conclusion at [68], I have further concluded that, in addition to my conclusions in relation to the continuing ancillary use nature of the tattoo operation, the Court's powers to grant consent to the Applicant's modification application have not been enlivened, and I am unable to approve the application.

Conclusion

As stated above at [48] and [56], I have concluded that: 1. deletion or amendment of Condition 6, as proposed by the Applicant, is likely to give rise to the use of the Subject Site that would be: 1. independent of, and not ancillary to, its permissible, dominant, use; and 2. not be a permissible use within the B5 zoning of the Subject Site.
Further, as a consequence of my conclusions above at [70], [68] and [69], I have further concluded that: 1. I am unable to be satisfied that the proposed development would remain "essentially or materially" the same as the currently approved development on the Subject Site.
Consequently, the precondition within s 4.55(2) of the EP&A Act, that I be satisfied that the development as modified would be substantially the same development as the development for which consent was originally granted, is also not met.
I find that the Applicant's modification application should not be approved and the Applicant's appeal should be dismissed, because I have found that the development if modified: 1. is likely to give rise to an independent and prohibited use within the zoning of the subject site; and 2. is such that I cannot be satisfied that the proposed development would be substantially the same development as originally approved, and, as a consequence, do not have jurisdiction to grant consent to this modification application under s 4.55(2) of the EP&A Act.
Having reached the conclusions above at [73(1)] and [73(2)], it is unnecessary for me to consider further the remaining contentions in this appeal.

Orders

The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned, with the exception of Exhibits A and 1.

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: 16 August 2019

(2013) 198 LGERA 203

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