Whether the development as modified is substantially the same as the development for which consent was granted
43The requirement that the consent authority be 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 is a condition precedent to the exercise of the power to modify a consent: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342 at 347. The parties were in agreement as to the approach to be adopted to consideration of whether the threshold requirement of s 96(1A)(b) is met, while differing as to the outcome in the circumstances of this application.
44The power to modify a consent is a power "to alter without radical transformation" the consent: Scrap Realty at 347; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474. The focus is on "the development", making a comparison between the development as modified and the development as originally granted: Scrap Realty. The result of the comparison must be a finding that the modified development is "essentially" or "materially" the same as the approved development: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309; Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8. Both a qualitative and quantitative comparison is required, and the comparison involves an appreciation of the developments being compared in their proper contexts, which includes the circumstances in which the development consent was granted: Moto Projects at 309.
45The applicant submits that the Council's approach in its contention which contrasts the original consent for a combination of uses with its characterisation of the proposed use to be carried out by the same business in an expanded area as a "restaurant and café" is incorrect. In artificially "slicing and dicing" the uses approved in the original approval the Council has contravened the fundamental principle that in characterising a use the overall purpose of use governs, and does not characterise the approved operation at a sufficient level of generality, rather it focuses impermissibly on component parts of the overall purpose of use. Although the area occupied by certain components of use has changed the overall use of the premises as a whole has not: it was and is as a café, with cakes pastries and coffee now served across the whole premises instead of in one part and fish and chips in the remainder under the original approval. There is no additional and distinct use added here. The approved use was for a restaurant or café and the use sought in the modification is exactly that. The internal rearrangement of the adjoining tenancies does not represent a substantial qualitative change to the development, nor is the increase in available seats from 66 to over 100. The physical changes, being removal of walls, relocation of the parking, and increase in seating, are discrete and confined. Even if there is a difference in character from the Ocean 7 to the Charlie Lovett coffee and warehouse elements, incorporating the 71 sqm Ocean 7 area into the Charlie Lovett operation would not effect a substantial change. The applicant submits that it would be no legal bar to the approval of the modification even if the use as a café was prohibited in the IN2 zone as a s 96 modification is not a grant of consent, and the 2012 LEP provisions are taken into account as non-binding relevant considerations under s 96(3) of the Act. In reply, the applicant submitted that there remains a manufacturing element, given the evidence as to the quantity of coffee beans processed, while the café is the dominant use. The evidence as to lack of impact in itself suggests that there is no substantial change.
46The Council submits that the increase in seating, extension of trading hours, and consolidation of floor space will result in a greater number of people eating and being supplied with products, and that is not substantially the same as the approved development when qualitative and quantitative aspects of the use are considered. The development consent has to be construed by reference to the transactions, activities and processes approved, rather than looking broadly for a label. The approved plans show three separate places with different activities in each and the Ocean 7 part separately tenanted. The western and middle components may be one co-ordinated operation, however there are two different ranges of transactions, activities and processes. If the proposal is for "food and drink premises" it is prohibited and cannot be consistent with the zone objectives. What was approved in the development consent was a take away and so what can be approved must also be a take away and not a café, and there is no power to approve a prohibited development in a s96 modification. In qualitative terms, there were three separate forms of activity and one is now proposed. In considering whether the proposal is for a take away, some seating would be acceptable, however there would be a point at which the use is not "predominantly" for take away. The changes to trading hours, number of seats, and the consolidation of floor space are all directed to getting more people into the space, and are all elements taking the use away from a take away. In quantitative terms, the number of tables and the increase in floor space used for commercial purposes which are prohibited is significant.
47Considering first the physical changes proposed in the modification application, the approved plans for 11/DA-268 show on drawing AA003 walls separating the building into three sections, each with an opening to the front of the building. The western area is identified as "Warehouse Storage & Logistics", accessible at the front through an existing roller shutter; and the central area and the eastern areas open on to the "External Seating Area". The DA SEE stated that the floor area for those three parts was approximately 66m2 for the (western) "Charlie Lovett" Warehouse; 95.3m2 for the (central) "Charlie Lovett" Roasting and Manufacturing; and 71.7m2 for the (eastern) "Ocean 7". The modification plans (exhibit A) show removal of the central part of the wall previously separating the western and central parts of the building; relocation of the Roasting Work Bench and Destoner from the central part to the western part; removal of the wall separating the central and eastern part of the building and extension of the bench separating the kitchen and baking area from the seating area into the eastern part of the building. The planning experts agreed that the proposal does not result in any increase in gross floor area; Mr Ryan noted, however (exhibit 3 p4) that the operational characteristics of the floor area approved as "external seating area" would be different to and potentially less intensively used than the area shown as indoor seating due to the greater exposure to the elements when the roller shutters are opened.
48In quantitative terms, the most significant change is an increase in the seating. The expert planners agreed that the approved plans for 11/DA-268 indicate approximately 66 seats. The experts were in agreement that 36 of those seats were within the "External Seating Area", which they both noted was within the building being inside the roller shutters. The plans submitted with the modification application show, on Mr Ryan's calculation, 157 seats; and on Mr Brindle's calculation, 148 seats. Mr Brindle calculated that 48 of those seats would be within the existing Charlie Lovett area, 50 in the adjoining tenancy, and 50 would be external to the building. Mr Brindle noted (exhibit C, para 52) that the layout and seating within the existing Charlie Lovett tenancy reflects the proposed layout and seating under the modification application.
49The planning experts disagreed as to the number of patrons that could be expected to patronise the site. The development consent 11/DA-268 did not specify a maximum number of patrons permitted on the premises. The Without Prejudice Conditions of Consent filed by the applicant on 24 April 2014 (exhibit D) include proposed condition 3, stating that "no more than 100 patrons shall be permitted on the premises at any one time"; the applicant's position in the hearing is that it seeks approval for no more than this number of patrons.
50Mr Brindle's evidence was that there are presently 93 seats (50 internal and 43 external), and that the number of seats as proposed would be between 140 and 150 seats. The seating arrangement is flexible and moveable, is in a variety of forms and with a number of different types of tables or benches. In his opinion the provision of additional seating increases the intensity of the use, but does not radically transform the development into something of a different character (exhibit C, para 59, 61).
51Mr Ryan accepted Mr Brindle's calculation of 93 seats at present. He was of the opinion that there would be increased patronage associated with the significantly increased seating capacity of a single large restaurant (exhibit 2, para 25). In oral evidence Mr Ryan stated that there would be a change in the nature of usage with people sitting for longer and the extension of trading hours. He based his assessment of increase in patron numbers on the number of seats shown on the plans.
52The applicant relies on the evidence of Mr McLaren to support the submission that with 148 seats as proposed maximum peak usage would be around 70 patrons, and that because simply increasing the number of seats available to customers does not as a matter of course or necessarily lead to a similar increase in patron numbers, the actual increase in patron numbers is likely to be somewhat less. Mr McLaren's survey (exhibit E) showed a maximum of 40 patrons at Saturday lunch. Mr McLaren's statement of evidence (exhibit E p4) includes information as to peak trades, with Sunday lunch as the peak (at 1) with Saturday lunch at 0.72. That would indicate, as submitted by the applicant (written submissions para 47), that there are at present 55-56 patrons at the peak, with 82 seats (on Mr McLaren's calculation). The applicant draws from that information the submission that with 148 seats as proposed the maximum would be around 70 patrons.
53I accept the applicant's submission that the proposal is not in terms a proposal to increase maximum patron numbers from 66 to 100. There is no limit on the number of patrons specified in the development consent. However, in my view, the likelihood is that the consequence of the increase in seating provided in the expanded public area will be an increase patron numbers. It is unrealistic to assume that a proprietor would undertake the work envisaged in the proposal unless it was with the expectation, or hope, of increasing patronage and thereby business. The plans propose an increase in the number of seats from the approved 66 to 148 or 157, more than double the presently approved number. On Mr Brindle's numbers, the increase in internal seats is from 30 to 98 seats, a threefold increase. I accept Mr Brindle's evidence as to the nature of the seating, which as observed on the view is mostly moveable and with a variety of seating types, including benches, capable of accommodating two or three people, or at times one customer. While there is flexibility in seating arrangements, and it may be that the seats may not be fully occupied, an overall increase in the number of seats would enable an increase in the number of patrons able to consume food and drink at the premises, subject to the limit of 100 proposed in the draft Conditions. Whether or not the numbers reach the 100 maximum agreed to by the applicant, or are in the order of 70 at the peak as submitted by the applicant, I am satisfied that there is the capacity, and the likelihood, for an increase in the number of patrons. Whether or not that would have the impact on amenity as contended for by the Council is considered below. For the purposes of the threshold issue, what is relevant is that there is a material increase in the capacity of the premises.
54The proposal now includes an increase in parking spaces from the approved 11 to 18, as proposed by Mr McLaren (discussed further below). There is no proposal to increase the maximum number of staff (20). The hours of operation of the manufacturing (coffee roasting) component of the premises is unchanged.
55The presently approved trading hours for Charlie Lovett and Ocean 7 are 7.00am to 9.00pm Monday to Sunday. The applicant is seeking approval for trading hours from 6.00am to 12 midnight Monday to Sunday. The planning experts agreed that the additional hour in the morning is acceptable (exhibit 3, p4). The Council does not oppose the extension of trading hours from 9pm to midnight for a trial period of 12 months from the date of issue of an occupation certificate (proposed condition 98); the applicant does not oppose the imposition of a trial period. The intention of the applicant is, as reflected in the extracts above from the Modification SEE, that patrons will stay longer in the evenings with the extended trading hours.
56In undertaking a qualitative assessment, I accept that whether or not the present built form and layout (with removal of most of the wall dividing the western and central parts of the building, location of the roasting work area in the western part of the building, and the additional seating above the approved 66) is consistent with the development consent, the present operation provides an indication of the outcome envisaged by the modification application. I accept Mr Brindle's evidence that the existing layout and seating reflect what is proposed (exhibit C, para 52).
57The modification proposes the retention of "Warehouse, Storage & Logistics" in the western part of the building, with pallet racking, storage containers, and a roaster, the relocation of the roasting work bench and destoner, and the opening up of that area to the central part of the building (exhibit A). Mr Brindle's evidence (exhibit C, para 40), based on information from the applicant's business manager, was that approximately 2.6 tonnes of coffee per month are processed in the warehouse and roasting area; coffee beans are stored on site after roasting for a short time; approximately 350kg of coffee per month is sold through the café, and coffee is also retailed from the café in small bags up to 1kg; and the remainder and vast majority of the coffee is distributed to customers including other Charlie Lovett outlets and other coffee shops and retailers. Based on that evidence, even if the amount of coffee sold through the café doubles as a result of the present application, it would still represent a small percentage of the coffee throughput from the manufacturing area. I accept Mr Brindle's evidence that the removal of the wall facilitates staff movement between the warehouse storage and logistics area and the other part of Charlie Lovett (exhibit C, para 57).I note that the appreciation of the coffee roasting process to which he also referred would have been available had the roasting and manufacturing area been located as shown on the approved plans. While there is some change to the physical layout, in my view the coffee manufacturing and storage element of the approved development, which is related to, but not directly part of, the adjoining café operation, is not materially changed from the development as approved.
58Mr Brindle described (exhibit C) the current use of the site in the following terms:
38. Charlie Lovett is an integrated coffee related business comprising two main elements:
a. coffee storage, roasting and distribution which takes place primarily in the warehouse storage and logistics area as approved and as modified;
b. a café which includes back of house areas and public areas. The café also includes a bench with a small roaster currently used as a sampling bench.
...
41. The café serves coffee and a range of foods including bakery items baked on the premises. Other food and snacks are sold including pizzas, frozen pastas which reheated and the like. There are no commercial cooktops, fryers or steamers.
42. Customers order at the cash register and then take a seat for the coffee or food to be served to the table or seat or to wait for takeaway.
59Mr Brindle's description of the present operation was not disputed, and based on the view I accept it as an accurate description of food service part of the business. The planning experts were in agreement that the current use of the middle area of the premises and the outdoor seating area has the appearance of a café. I accept that evidence, which is consistent with the view where patrons were seated in varying numbers both at the internal and external seating, a variety of food was on display, and staff were serving behind the counter or working in the rear kitchen area. On that basis, it is in my view appropriate to describe the nature of the development as proposed to be modified for the central and eastern sections of the building as a café. It is not inconsistent with that description that there are no tablecloths, or table settings.
60The planners agreed that the proposed use of the central and eastern parts of the building is for "food and drink premises" and not "take away food premises" under the 2012 LEP. The key difference between a "restaurant or café" and a "take away food and drink premises" as defined is whether consumption of food and drink is predominantly on the premises as opposed to away from the premises. A "restaurant or café" can provide some take away, and a "take away food and drink premises" can provide for some consumption on the premises. Having regard to the significant additional provision of internal seating and the expectation that patrons will stay longer over their meals in the extended evening hours, in the context of Mr Brindle's description of the operation of the café, I agree that if the purpose of the development as proposed to be modified is to be considered against the definitions and controls in the 2012 LEP, the food premises part of the premises would be characterised as a "restaurant or café".
61The planners disagreed as to how the use as approved in consent 11/DA-268 should be characterised. Both experts agreed that it was necessary to have regard to the consent, the approved plans and the documents referred to in the development consent in construing the consent and identifying the development as approved. That approach to construction of development consent 11/DA-268 accords with the authorities. In circumstances where the notice of determination did not specify the approved use, and condition 2 required that the development be carried out in accordance with the details in the application form, the supporting information received, and the plans, except as amended by the conditions of consent, the documents and the plans identified in condition 2 are incorporated in the consent: Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321; Auburn Municipal Council v Szabo (1989) 67 LGRA 427; Stebbins v Lismore City Council [1988] NSWCA 146.
62Mr Brindle was of the opinion that the approved use was not for "take away food and drink premises" as defined in the LEP. The elements of the approval that led him to that view include the amount of public area containing tables and chairs for eating relative to back of house areas, the maximum number of employees allowed on the site, the provision of toilet facilities, the lack of a hot food bar and a deep fryer, and the hours of operation. The other takeaway food premises in the vicinity of the site are generally smaller, contain very few seats inside, have small public areas, close at approximately 2.30pm and focus on takeaway sandwiches and hot foods displayed in hot food bars. In his opinion condition 93 of the development consent deals with environmental health issues and is not a restriction on land use, and does not alter the nature of the approved development. In his contribution to the joint report, Mr Brindle noted (at 2.1.3(a), (b)) that the approved development is significantly different from a takeaway food outlet, on the basis of the significant area of seating, the trading hours, provision of toilet facilities, and absence of hot food bar and deep frying. In his opinion the provision of a café to provide a place for workers in the industrial estate to meet, work or eat is appropriate and consistent with the consent.
63Mr Ryan considered (exhibit 2, para 27) the essential elements of the approved use to be a site chosen so as to enable a separate coffee manufacturing and storage function; a relatively small takeaway food outlet separate from but associated with the manufacturing business, including some outdoor seating; a separate take away food outlet apparently not associated with the coffee businesses including internal and external seating; and the take away food outlets were to principally serve the local industrial workforce. In his contribution to the joint report (exhibit 3, p 4) Mr Ryan relied upon the reference in the DA SEE to the use of the central and eastern parts of the premises as "takeaway premises" and "takeaway eatery", and the limitation in condition 93 to service in takeaway containers. While he accepted that some "on premises dining" might occur, he considered that the self-description by the applicant of the use as takeaway serving the "daily convenience of the local workforce" described the nature of the use as primarily takeaway with ancillary "on premises dining".
64As noted by Mr Brindle (exhibit C paragraph 23), there is no reference to the terms "takeaway food outlet" or "takeaway food and drink premises" in the DA SEE or the development application. However, in my view recourse to defined terms in the current planning controls would not provide much assistance in deriving an understanding of the "essence" of the development as approved. The planning controls at the time of the development application did not include development for purposes described in those terms. The 1994 LEP did not distinguish, as the 2012 LEP does, between "a restaurant or café", on the one hand, and a "take away food and drink premises" on the other, as different forms of "food and drink premises". The Council's assessment documents describe the proposed development as refreshment rooms, which was the relevant term used in the 1994 LEP to include "a restaurant, café, tea room, eating house or the like". However, that term was not used in either the DA SEE or the development application, and its use in the Council's assessment is reflective of the label attached to what was then accepted to fall within the range of innominate uses permissible with development consent. Neither planner considered it appropriate to rely on the assessment report in construing the development consent.
65The development application form makes no reference to any particular kind of food premises, referring instead to "manufacturing & retail" and "industrial/retail". Neither do the approved plans. The layout of the premises as shown on the approved plans is described above at paragraph [26]; those plans show equipment and fittings consistent with food preparation and service, including refrigerated displays, with the notations "Food Manufacturing & Back of House Area" and "Service Area" for the central and eastern section of the building. The descriptions used in the DA SEE for the food service parts of the proposed development are as "takeaway premise" (p1), "takeaway eatery" (p3), "eatery" (p3, 4, 5) and "eateries" (p7), and "café" (p3, under the heading Types of Goods Prepared; p6 referring to floor area). The clearest indication as to what kind of food premises was proposed comes in part 3.0 Development Proposal at p 3, and at p5 in the reference to objective (f) of the Light Industrial zone and the exception for business premises, office premises or shops in parentheses in the development control table (quoted above at paragraphs [20], [21]).
66Based on those documents, those parts of the premises not used for coffee manufacturing and storage could best be described as a takeaway premises. While there are some references to "café", the majority of the references in the DA SEE are to "takeaway". That description of the approved development is supported by the discussion of objective (f) of the Light Industrial zone at p 5, and the specification in condition 93 that food and drink be served only in takeaway containers. It may be, as stated by Mr Brindle, that this condition arose from internal Council consideration of environmental health issues, however a restriction to the use of takeaway food containers supports a finding that the nature of the food and drink services to be provided was that of a take away. The provision of some seating, and toilets, would not detract from that understanding. The two take away establishments in the locality, which are significantly smaller premises than the subject site (65.585sqm and 45sqm) also provide some seating (16 and 10 seats respectively as observed by Mr McLaren).
67The characterisation of the purpose of a use of land must be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310; Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 at [36]. Having regard to the description of the proposed development in the DA SEE, including the summary at p 3 as "various operations listed as warehousing, coffee/food manufacturing as well as a takeaway eatery", and the plans which show the separation between the various elements, in my view Mr Ryan's description better captures the essence of the development as approved than that of Mr Brindle. I agree with Mr Ryan that the essential elements of the approved development are a coffee manufacturing and storage operation, a relatively small take away food and drink outlet separate from but associated with the manufacturing business, and a separate take away food outlet not associated with that coffee business. To describe the development in those terms is not to "slice and dice" it, but reflects the distinction drawn both in terms of the physical layout and the proposed activities, transactions and processes in the description of the development as a whole as understood from the DA SEE and the approved plans.
68The approved use of the central and eastern parts of the premises as take away food premises is different to the use as a café. Different forms of food premises have different characteristics, including for example factors such as how long patrons stay and whether they sit down to dine or consume their meal away from the premises. That difference is reflected in Mr McLaren's contrast between the café use of Charlie Lovett to a "typical restaurant" with three course meals and table service (exhibit E, p4) in support of a variation from the required car parking spaces under section 3.1 of the DCP. The difference in types of food premises is also now reflected in the inclusion within the general term "food and drink premises" under the 2012 LEP of four different, and separately defined, types of premises where food is prepared and sold for consumption on and off the premises.
69Both in quantitative and qualitative terms there are in my view material changes that mean that the development as modified is not "essentially or materially" the same as the approved development. The substantial increase in the number of seats, with the expectation that patrons will stay longer when dining in the extended hours in the evening, in an expanded Charlie Lovett café operating in association with the processing warehouse and storage area, when compared with the approved development on a smaller scale for a coffee processing and storage area together with two take away premises, is in my view an alteration that radically transforms the development. I am not satisfied that the development to which the consent as modified relates can be regarded as substantially the same development as the development for which the consent was originally granted. Accordingly, there is no power to modify the consent, whether or not the application might be worthy of approval on the merits (Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46). The modification application must be refused.