City Plan Services Pty Ltd v Woollahra Council

Land and Environment Court (NSW)|2004-03-01|Before: Mr P

The application has two facets, both of which have to be tested against s 96(2)(a) of the Act, for the applicant to succeed. These elements are, in essence, reinstatement of that which has been demolished in excess of the original consent; a rearranged layout for the first floor and an additional bedroom, walk in wardrobe and en-suite bathroom in the roof cavity and extension to the first floor rear dining area. Section 96's provisions being contain three gates to permit modification, the widest of those gates is being s 96(2) - which is that sought to be availed of in the present application. It reads, relevantly: 2. A consent authority may on application be made by the applicant or any other person entitled to act on a consent grant by the consent authority and subject to and in accordance with the regulations, modify the consent if:

a. it is 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).

If the first of these elements fails, the second becomes irrelevant in the present proceedings.

It is convenient, at this stage, the set out of what constitutes development for the purposes of the Act. The relevant definition reads, in s 4 of the Act: "development" means: the use of land, and the subdivision of land, and the erection of a building, and the carrying out of a work, and the demolition of a building or work and then follow several other matters that are not presently relevant.

The test to be applied from s 96(2), therefore, is whether the development now proposed is substantially the same development as that to which consent was originally given on 4 December 2001. The plans at folios three and four of the council's bundle of documents show substantial lengths of wall to be retained but the ground and first floor some floors to be retained and predominate portion of the work structure to be retained, much of this has been demolished. This is best illustrated in the survey plan, which is Exhibit D in the proceedings can be photographed which are Exhibit 2.

Mr A Rowan, a town planning expert witness called for the council, undertook a number of calculations which were agreed to on behalf of the applicant as being sufficiently accurate for me to rely upon them for the purposes of these issues. They demonstrated that at the ground floor there were one hundred and sixty two point nine linear metres of wall of which it was proposed to retain sixty four point eight linear metres. At the first floor there was one hundred and eighteen point eight linear metres of which it was proposed to retain thirty five point four linear metres, that giving a total across both levels of the original building of two hundred and eighty one point seven linear metres of wall of which one hundred point two linear metres was proposed to be retained.

8 It was Mr Rowan's evidence that what has actually been retained after the additional demolition is some eleven point five metres and that eighty eight point seven metres of that which was to have been retained has been demolished. This on his calculations meant that approximately eighty eight per cent of that which was to have been retained has been demolished.

9 In effect from the view it is obvious that the totality of the roof structure has been demolished, the totality save perhaps one or two bricks of the first floor wall structures have been demolished. The totality of the first floor flooring structures have been demolished and there is some portion of the ground floor wall structures retained, but a significant portion of that which has been retained is scheduled to be demolished pursuant to the original consent, and there did not appear to be any element of the ground floor floors retained.

10 His calculations both numerically and graphically are contained in exhibit 5 in the proceedings, the diagrams of which show by colouring those elements which were originally marked green as having been approved for demolition, and those which were to have been retained and calculations as to how he arrived at the figures I have already quoted.

11 The applicant proposes that the bricks and a significant quantity of the timber which have been demolished but have been either de-mortared or de-nailed as appropriate would be used in the reconstruction if the present section 96 modification application were approved. As Mr McEwen SC, counsel for the applicant puts it, essentially it will be the same but with new mortar. I do not understand there to be any reuse of roofing materials, see paragraph 6 of the affidavit of Peter Charles Allen of 13 February 2004, but given the conclusions I have reached I do not consider that this is in itself determinative.

12 The application originally and the s 96(2) modification application are described in the council officer's assessment reports as being refurbishment of existing residential flat building. Mr McEwen took me to dictionary considerations in the Macquarie and Oxford dictionaries of the definition of refurbishment and a number of words flowing from those definitions. I am satisfied that these do not automatically help as if they are relevant descriptions themselves need to be tested against the facts and the s 96(2)(a) test. This is discussed further in these reasons. However, mere words will not cure a defect if, properly tested, it is shown to exist.

13 How then should the development be tested against section 96(2)(a)? Stein J in Vacik Pty Limited v Penrith City Council [1992] NSW LEC (unreported), a decision variously cited as being of 18 or 24 February 1992, said as to the meaning of the words substantially the same development when dealing with the then section 102 of the Act, that the question to be addressed is, Is the proposed modified development substantially the same development as that in the development consent as already amended? In my opinion, substantially when used in the section means essentially or materially or having the same essence .

14 Subsequent changes to the legislative framework have deleted the element of as amended as cited in that passage from his Honour's decision. His Honour also continued to say,

In approaching the section 102 exercise, one should not fall into the trap of saying that the development was for a certain use, extractive industry, and as amended it will be precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly an extractive industry, must be assumed to include the way in which the development is to be carried out.

15 In the decision of Lloyd J in Thomas v Pittwater Council [2003] NSWLEC 19, his Honour said at paragraph 19,

Accordingly to the decision of Stein J in Vacik , the comparison must also include the way in which the development is to be carried out.

16 The scope of consideration of development was described in Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 at page 309 where Bignold J observed as follows.

The relevant satisfaction required by section 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 original approved development.

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.

The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified with a 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.

17 In affidavits read in these proceedings of Peter Charles Allen, builder, dated 13 February 2004, and Catherine Apostolopoulos dated 15 February 2004, reasons for the additional demolition and dealings with the council are set out. Whilst they are undoubtedly relevant in any proceedings which might be brought in a different class of proceedings not presently before the Court, they are of limited assistance here.

As Lloyd J said in Thomas at paragraphs 16 and 17, In applying what is said in Vasic and Moto , I must accept the submissions of Mr Maston that the circumstances in which the consent was granted are relevant. This suggests that I should not accept the submission of Mr Galasso that the reason why the change was made is irrelevant particularly where, as here, there has been a change in circumstances in which the consent was originally granted. The changed circumstances are described in paragraphs 5 and 6 above.

Acceptance of the fact that there are changed circumstances is not however determinative. The fundamental question remains whether the development as proposed to be modified can be said to be additions and alterations to an existing dwelling house.

20 It is at this stage of these proceedings that the description of refurbishment to which Mr McEwen took me in the Oxford and Macquarie dictionaries come into play. The definition of "refurbish" given in the Oxford dictionary is to furbish anew, to re-polish or to do up again. Furbish is relevantly defined as being to brush or clean up, to give a new look to, to do or get up afresh, to renovate or to revive, and from that Mr McEwen took me to a number of definitions of renovate, the relevant one of which he principally cited was to renew materially, to repair, to restore by replacing lost or damaged parts, to create anew. The Macquarie dictionary was not as extensive and essentially adds nothing to the definitions already quoted from the Oxford dictionary. What they do not mean is to recreate Phoenix like from the ashes or rubble of the old something that is essentially an entire recreation.

21 In Moto, Bignold J said that there are two elements that require assessment. The first is a qualitative element and the second is a quantitative one. I am satisfied that the section 96(2)(a) modification application essentially satisfies the quantitative test as to its recreative element. It is at the qualitative stage that I consider that the applicant fails. I repeat that the definition of development includes not merely the erection of the building but the carrying out of works and the demolition of a building work.

22 The applicant in my view suffers at the hand of what is known in Scottish hagiography as the Mackenzie's axe problem. In that case, Mackenzie's axe was handed from father to son over many generations pursuant to the doctrines of primogeniture. The handle and the head were changed on many occasions but it was still regarded as Mackenzie's axe.

23 The extent of the demolition in this case, including essentially the whole of the building including its roof, floors and eighty eight per cent or thereabouts of the walls proposed to be retained, when tested against the definition of development contained in section 4 of the Act means in my view two things. Firstly, that the scope of the demolition permitted under the original consent is sufficiently different that that element is not substantially the same on a qualitative basis as that which is presently demolished and, secondly, that that which is required to be reconstructed are so much more than the works contemplated in the original development consent that they too are not substantially the same as the development.

24 Taken together, I am satisfied that these two steps necessary in the process to recreate the structure before consideration of the additional works that are proposed as the second element of the modification are so different to that which was consented to in December 2001 that it cannot on any stretch of the imagination be said to be substantially the same, the development.

25 Therefore the orders that I propose to make are: 1. The appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979 is dismissed. 2. Application pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 to modify development consent 417/2001 for works at 29A Manning Road, Double Bay being Lot 1 in DP 90176 and Lot 1 in DP 302386 is determined by the refusal of development consent 3. The exhibits, except Exhibits 1 folios 3 and 4 and Exhibits 2, 5, C and D, may be returned.

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.

CITATION : City Plan Services Pty Ltd v Woollahra Council [2004] NSWLEC 73 APPLICANT City Plan Services Pty Ltd PARTIES : RESPOPNDENT Woollahra Council . FILE NUMBER(S) : 11210 of 2003 CORAM: Moore C Construction and Interpretation - Development Consent :- Modification of consent KEY ISSUES: Demolition and re-instatement Substantially the same development . LEGISLATION CITED: Environmental Planning and Assessment Act 1979 . Vacik Pty Limited v Penrith City Council [1992] NSW LEC (unreported); CASES CITED: Thomas v Pittwater Council [2003] NSWLEC 19; Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298; . DATES OF HEARING: 1 March 2004 EX TEMPORE 03/02/2004 JUDGMENT DATE :

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