Carbone v Council of the City of Ryde - [2018] NSWLEC 1253 - NSWLEC 2018 case summary — Zoe

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Carbone v Council of the City of Ryde

[2018] NSWLEC 1253

Land and Environment Court (NSW)|2018-05-23

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2018-05-23

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

Judgment

COMMISSIONER: These proceedings are an appeal against the actual refusal of modification application (MOD/2017/0143) under s96 of the Environmental Planning and Assessment Act 1979 (the Act). The application proposes the following modifications to the existing consent: deletion of the swimming pool; extension of the deck to the east; provide a workshop in front of Bedroom 5; alterations to the front porch and entry stairs; replace approved garage and store room with sitting room and entry way; extension of the driveway to the east to provide pedestrian access to the ground floor level; provide bollard between driveway and pedestrian access path over driveway to front entry; 1.8m high privacy screen to driveway along northern boundary. (Statement of Facts and Contentions)
Since the lodgement of the application the Act has been amended and the modifications of development consents are now made pursuant to s4.55 of the Act.
This modification application is lodged pursuant to s4.55(1A). These provisions provide that the Court may modify a consent if: (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.

[8]

Is the development substantially the same and of minimal environmental impact?

The agreed evidence of the experts is as follows: 2.2.13 The experts are 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 for the following reasons: • The modification maintains the approved elevated driveway structure including the approved levels; • The development as approved did not prevent the utilization of the elevated driveway for parking as is now proposed; • The proposal is largely the same as the approved development given that the proposal does not seek to alter the use or footprint of the driveway. • The visual appearance and relationship to the adjoining developments are similar to that approved under the original scheme and the dwelling maintains a similar presentation to that originally approved. (Joint Expert report).
Having considered the existing consent and the modification application I accept the agreed evidence of the experts that the scope of works proposed by the modification application is "essentially" or "materially" the same as the approved development (Moto Projects (No.2) Pty Ltd v North Sydney Council [1999] NSWLEC280 at [55]).
In relation to the test of whether the modification is of minimal environmental impact, the assessment approach is elucidated in by Preston CJ in Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 which at [57] states: Furthermore, the task required by s 96(1A)(a) demands a comparative assessment of the environmental impacts of the development as originally approved and the development as modified. As with the task required by s 96(1A)(b), this comparative assessment required by s 96(1A)(a) is not to be done in a "sterile vacuum" by comparing the bare terms of the consent as originally granted and the consent as modified, but rather is to involve an appreciation, qualitative as well as quantitative, of the developments and the environmental impacts of those developments.
The modification works (refer paragraph [1]) sought by the application were the subject of amendment as detailed at paragraph [17]. These amendments seek to reduce the impact of the proposed development, in particular any impact to the adjoining property at 36 Conrad Street.
Having considered the environmental impact arising from this amended proposal, and that arising from the existing consent, I am satisfied that the proposed modification is of minimal environmental impact.
With the above preconditions met it is appropriate to turn to the merit of the modifications sought.

[10]

Impacts on adjoining neighbours:

The experts agree that the amendments improve the amenity of the adjoining property, as follows: 2.1.2 The experts agree that the above amendments improve the amenity of the adjoining property by locating the driveway further away from the common boundary with No.36 Conrad Street. 2.1.3 The experts agree that the landscaping will soften the appearance of the driveway and screen the driveway when viewed from No.36 Conrad Street. Particular (b) is satisfied by the amendments. 2.1.4 The experts agree that the bulk and scale of the screen and visual impact on the adjoining property and the streetscape has been improved by reducing the length of the privacy screen. Additionally, the physical barrier along the southern side of the driveways has been removed from the plans. As such, Particulars (c), (d), (e) and (f) have been addressed 2.1.5 The expert agrees that the development as amended presents an integrated design and form an integrated whole given the use of render with associated paint finish to the face and use of the existing roof tiles. The existing windows are maintained with the replacement of the window to the sitting room, noting the proportion and size of the new window relates well to the existing dwelling. Therefore Control (a) would be satisfied. 2.1.6 The experts agree that Control (b) is relevant and note that it expresses that 'alterations and additions are to improve the amenity and liveability of dwellings and sites, including practical and useable external spaces'. We note the alterations to the dwelling are proposed to improve the functionality and liveability of the dwelling. … 2.1.8 It was agreed that the elevated driveway would enable persons entering and exiting a vehicle to overlook into the adjoining property at No. 36. It was noted that there is a physical separation of approximately 8m between the driveway edge and the adjoining dwelling at No.36 and what appears to be a kitchen and living room window and an outdoor courtyard area. It was also noted that the existing front balcony adopts the same finished level and the northern edge overlooks into the adjoining property. It was also agreed that this impact would also be generated by the approved plans associated with the original development application as the levels and location of the elevated driveway is comparable. The privacy screen of 1.8m as now proposed will provide mitigation to this visual privacy impact. The screen with a length of 3.6m along the northern eastern portion of the driveway and the provision of semi-established planting along the northern boundary will prevent overlooking from residents of No.38 Conrad Street into the outdoor courtyard area from the driveway. The physical separation of the driveway from the living room and kitchen window and the provision of the screen and landscaping will also significantly mitigate overlooking from residents of No.38 Conrad when utilising the driveway. (Joint Expert report)