Freeman v Manly Council

The site inspection

1. I attended the site and met Mr Staunton, barrister for the applicant, and Mr Seton, solicitor for the Council. They were accompanied by the relevant experts for each party. Uniquely in my near 13 years as a member of the Court, we were unable to enter the site because, as a consequence of some unknown incident (not relevant to these proceedings) that had occurred earlier on the morning of the hearing, blue and white checked plastic police tape isolated the premises - premises which had been declared a crime scene.
2. Fortunately, there were no issues in the proceedings that required access to the site for an inspection as the relevant matters raised by the Council concerning the proposed design of the additional apartment at the southern end of the uppermost level were able to be observed from slightly downhill and on the other side of Sydney Road.

The issues raised by the Council

1. The Council's primary contentions were:

• Whether the proposed modification satisfied the relevant statutory test as being, if approved, substantially the same development as that for which the original consent had been given (with the Council contending that the proposed modification failed this test); and
• If this contention was not accepted, that the streetscape impact of the proposed design at the southern end of the upper level was unacceptable in its local context.

Preliminary discussion of the issues

1. During the course of the site inspection, I indicated to the legal representatives, particularly Mr Staunton,, that they would need to address the question of whether or not the aspect of the application that caused the apartment element proposed by the modification application to transit from floor space ratio compliant to floor space ratio non-compliant meant that one of the tests of substantially the same namely that the modified development would be qualitatively substantially the same as that for which consent had been granted (see Moto Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298).
2. Mr Staunton indicated that if this was to be potentially fatal to the proposed modification, the applicant would consider seeking leave to amend the application so that one of the proposed residential apartments would be converted into the manager's residence for the boarding house and thus not be strata subdivided from the boarding house. I indicated that it might be appropriate for him to seek instructions from his client as to whether the applicant wished to seek leave for such an amendment.

Amendment in court

1. When we resumed in court after the site inspection, Mr Staunton indicated that the applicant sought leave to amend the proposal in two regards. The first was to rearrange the boarding house element so that the manager's residence would now be moved to what had been the proposed additional apartment at the southern end of the uppermost level and an additional boarding house room created where the manager's residence had been originally proposed. This meant that there would remain only two residences on the uppermost level. The second element of the amendments would result in changes to the design of the roof terrace at the southern end of the uppermost level.
2. Mr Seton indicated that the proposed amendments had been discussed between the parties prior of the commencement of the proceedings in court and that the Council did not oppose leave be granted to amend in the fashion sought. Mr Seton also indicated that the proposed amendments, if leave were to be granted, would have the effect that the Council would no longer be pressing any contentions as to why the proposed modifications should not be approved. Under the circumstances, leave to amend as proposed was granted.

Parking

1. As a consequence of the amendments, there was now a surplus of parking spaces above the total of the minimum number of spaces for the boarding house when added to the minimum number of spaces for the apartments. To deal with this, the conditions of consent needed to be revised to ensure that the necessary minimum numbers of parking spaces were allocated as required but leaving the surplus spaces subject to later distribution.

Consideration of the modified proposal

1. Although the Council no longer pressed that the application should be refused as all matters previously in contention had now been resolved, it nonetheless continues to fall to me to address two areas before I am able to conclude that it is appropriate to grant consent to the amended application.
2. First, I am obliged to consider whether the now proposed modification will result, if approved, in a development that is substantially the same as that which was originally approved and, second, whether there is anything that has been raised in the objections lodged with the Council to the proposal that have not, now, been satisfactorily addressed by the amendments if needed.
3. I have considered the amended proposal and, as there is now no exceedences of any development standard involved and the proposal merely now adds an additional room to the boarding house whilst, at the same time, resolving some concerns that the Council had held concerning the internal layout of the boarding house, the amended proposal is both qualitatively and quantitatively substantially the same as the development that was originally approved (the Moto tests).
4. With respect to the objections, it is unnecessary to deal with them at length as the amended proposed modified development is now entirely compliant. Indeed, as earlier noted, the parking provision is rendered, as a consequence of the amendment, not only compliant but providing more spaces than are required (the adequacy of the parking provision being one of the matters of objection).

Conclusion

1. As there is no basis upon which the Council contends that the now amended modification application should be refused and being, myself, satisfied that the various matters originally contended by the Council and remaining to be considered arising out of the objections to the proposal do not stand as impediments to granting consent to the amended modification application, the amended modification application warrants approval.

Orders

1. It therefore follows that the orders of the Court are: 1. The Applicant is granted leave to amend the modification application to rely upon the following plans: Plan No. / Title Issue/ Date Received by Council Revision & Date DA 01 Site Plan/Roof Plan E dated 12.05.15 12.05.15 DA 11 Plan Level 1 & 2 E dated 12.05.15 12.05.15 DA 12 Plan Level 3 & 4 E dated 12.05.15 12.05.15 DA 21 East & West Elevations E dated 12.05.15 12.05.15 DA 22 North & East Elevations E dated 12.05.15 12.05.15 DA 31 Sections E dated 12.05.15 12.05.15

1. The Appeal is upheld; 2. Modification Application lodged 19 February 2014 to modify Development Consent No. DA105/13 for demolition of existing structures, construction of a three (3) storey twenty-two (22) studio boarding house with two (2) units and boarding manager's dwelling on third level, basement car parking with eleven (11) spaces, five (5) motorcycle spaces, bike storage, balconies and landscaping and stratum subdivision at 112 Sydney Road, Fairlight is determined by approving the modifications as set out in Annexure A; 3. As a consequence of order (3), Development Consent No. DA105/13 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and 4. The exhibits, other than Exhibits A, 2 and 4, are returned. Tim Moore Senior Commissioner 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: 19 May 2015