[2006] NSWLEC 99
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
Source
Original judgment source is linked above.
Catchwords
[2006] NSWLEC 99
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
Judgment (5 paragraphs)
[1]
The Applicant's submissions
The Applicant submits that the development as proposed to be modified will remain substantially the same development as that originally approved. He points to the terms of the Council's contention on this issue that the modification would convert the proposal from one that complies with the relevant development standards to one that doesn't but stresses that the only development standard breached is the maximum FSR. While the Applicant agrees that this standard is now exceeded by some 22%, he says that this percentage does not properly capture how the increase in floor space is distributed over the Site. The Applicant also contends that s 4.55(2) constitutes a complete source of power and that the breach of the FSR control does not preclude the granting of approval to the Modification Application: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233 [2015] NSWLEC 65 ("SDHA") at [31]).
The Applicant submits that the correct approach to determining whether the development as proposed to be modified is substantially the same as the development originally approved requires a comparison between the development as currently approved and the development as proposed to be modified and that this involves an appreciation both quantitative and qualitative of the developments being compared in their proper contexts: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (at [54] to [56]) ("Moto Projects"); Westlime at [173]. 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 at [55].
The Applicant says the changes between the approved and modified development may be seen in the schedule of changes contained within the Modification Application (Ex A, Tab 6). These are:
1. Line of sliding door to rumpus room moved 1.6 m south.
2. Pantry added to scullery where laundry was previously located.
3. Enclosure of the approved covered driveway area and incorporation into the garage.
4. Reconfiguration of internal spaces including the addition of a bathroom, bedroom and home office.
5. Relocation of the laundry from the kitchen to the basement level adjacent to the lift.
6. Addition of a small shoe storage area.
7. Addition of access to previously inaccessible undercroft. Undercroft to serve as plant room space.
8. Plenum to the west wall of the garage for drainage.
9. Line of sliding door to rumpus room moved 2.2 m north.
10. Addition of desk to Bedroom 4.
11. Introduction of pool plant area enclosed behind acoustically treated louvre doors.
12. Removal of triangular glazed window.
13. Concrete slab to extend over projecting window.
The Applicant accepts that the correspondence between the Council and the Applicant prior to the granting of the Consent (see [35] to [35(4)] above) can be considered as one of the circumstances in which the Consent was granted in accordance with Moto Projects at [56] but points out that this was not agitated by the Council in its statement of facts and contentions (Ex 1) or by its town planning expert in the joint expert report (Ex 7). The Applicant also questioned whether the correspondence included in the Council Bundle was complete (although he did not seek to supplement the correspondence tendered by the Council with any additional correspondence).
The Applicant was critical of what he described as the Council's "micro-assessment" of the differences between the approved development and the development as proposed to be modified and submitted that the proper comparison is between the approved "dwelling-house with parking" and the development as proposed to be modified which, he says, remains a "dwelling-house with parking". He argues that all of the additional floor space is contained within the existing building envelope and that, while the modified development includes an additional bedroom, a turntable instead of a turning bay in the garage area, and an office, these will be used by the occupants of the dwelling and will not change the characterisation of the development.
The Applicant also contends that there will be no perceptible change to the bulk of the dwelling house by the filling in of the open areas in the garage wall and says that the replacement of the voids with windows would only be apparent to someone who was specifically looking for the change. The Applicant also says that the changes proposed will have no impact on the neighbouring property at 39 Ayres Rd.
[2]
Findings on substantially the same
For the reasons which follow, I am not satisfied that the development as proposed to be modified is substantially the same as the development the subject of the Consent. As being so satisfied is a jurisdictional pre-requisite to my being able to approve the Modification Application, it necessarily follows that the Modification Application must be refused.
There was no real difference between the parties as to the approach the Court should take in making its assessment of whether the development as proposed to be modified will be substantially the same. The relevant principles were summarised by Pepper J in Westlime and Preston CJ in Arrage and are set out are set out at [30] and [31] above.
Those principles require that I identify and compare the material and essential features of the development as originally approved and the development as proposed to be modified in order to assess whether the modified development is substantially the same as the originally approved development. Those features are to be derived from the originally approved and the modified developments and not from the circumstances of the grant of the development consent: Arrage at [25].
It is in my view too simplistic to simply describe the material and essential elements of the development, both as approved and as proposed to be modified, as being a "dwelling house with parking" as the Applicant submitted. To do so carries the danger of falling into the trap Pepper J warned of in Westlime "of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development". I accept the Applicant's submission that the proposed modifications do not change the characterisation of the development as being for the purpose of a dwelling house. However, that finding does not answer the question posed by s 4.55(2)(a) of whether the modified development is substantially the same as the development originally approved. Similarly, while I accept Mr Minto's evidence that the proposed modification will not result in "unreasonable or increased impacts" when compared with the approved development (Ex 7 at [15]), the absence of such impacts does not mean that the modified development is substantially the same as the approved development.
While, at the highest level of generality, the development might be described as "a dwelling house and parking", the material or essential elements of the development in my view also include the size of the dwelling house.
In relation to the size of the dwelling house, I make the following observations:
1. The approved development has a floor area of 358.7 m2 and complies with the FSR development standard in the LEP while the modified development will have a floor area of 438,94 m2 (an increase of some 80 m2) and will exceed the FSR development standard by some 22%.
2. The approved development is a 4 bedroom house but the modified development would be a 5 bedroom house and will include a large 26 m2 home office and an extra bathroom.
I accept the joint position of the parties' town planning experts that the discernible built form of the development, both when viewed from the street and from adjacent properties will remain largely unchanged if the Modification Application is approved. This is because the proposed modification will take place within the 'envelope' of the previously approved building. Despite this, I find that the infilling of the space within the building envelope to the extent proposed by the Applicant results in a development that is not substantially the same as the development originally approved. In this regard I prefer Mr Ratcliff's evidence that the modifications "have transformed the proposal from one that is within the scope of the bulk and scale outcome sought by cl 4.4 of (the LEP) to one that notably departs from the development standard" (Ex 7 at [21]).
The FSR development standard in the LEP does not directly apply to the Modification Application: SDHA at [33]. Nevertheless, it is a clear indication that the bulk and scale of dwelling houses is a material consideration for residential development in the R2 - Low Density Residential zone in the LEP. The correspondence between the Council and the Applicant prior to the granting of the Consent (summarised at [35] above) indicates that the floor space of the dwelling house was an important consideration for the Council in deciding to grant the Consent.
The Modification Application will increase the total floor area of the dwelling house by some 80 m2 (from 358.71 m2 to 438.94 m2)) and will result in the FSR of the development exceeding the applicable maximum in the LEP by some 22%. That increase in floor area, even though it is contained within the approved building envelope, is in my view a very substantial increase and one that I find results in the modified development not being substantially the same as the development the subject of the Consent.
[3]
Conclusion
As I have found that the modified development is not substantially the same as the development the subject of the Consent, the Court does not have power to approve the Modification Application and the appeal must be dismissed.
[4]
Orders of the Court
The Court orders that:
1. The appeal is dismissed.
2. Modification Application MOD0058/21 to modify Development Consent DA No 0139/20 in relation to the land described as Lot 10 DP 13482 and known as 37 Ayres Rd, St Ives is refused.
3. All exhibits are returned with the exception of Exhibits A, B, 1 and 7, which are retained.
[5]
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: 08 September 2022
Parties
Applicant/Plaintiff:
Garbourg
Respondent/Defendant:
Ku-ring-gai Council
Cases Cited (12)
The appeal
The Applicant appeals from the Council's determination pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal was commenced on 15 February 2022, within the time required by s 8.10 of the EPA Act. The appeal is an appeal in Class 1 of the Court's jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.55(2) of the EPA Act.
The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 6 June 2022. I presided over the conciliation conference. When the parties were unable to reach an agreement to resolve the dispute, I terminated the conciliation conference and proceeded to hear the matter. The hearing took place on 6 and 7 June and 1 July 2022.
On 3 May 2022 a Council officer conducted an inspection of the Site and observed that a number of works the subject of the Modification Application had already been carried out. These include:
1. The enclosure of the approved outdoor driveway area and incorporation into the garage;
2. The reconfiguration of internal spaces including the addition of a bathroom, bedroom and home office;
3. The relocation of the laundry from the kitchen to the basement level adjacent to the lift; and
4. The addition of access to the previously inaccessible under croft.
Following this inspection, the Council sought and, on 18 May 2022, was granted leave to amend its statement of facts and contentions to reflect the fact that some of the works the subject of the Modification Application had already been completed. The Council filed an Amended Statement of Facts and Contentions on 19 May 2022 (Ex 1) which contends that the Modification should be refused on the following grounds:
1. The development to which the Consent as modified relates is not substantially the same as the development for which consent was originally granted.
2. The proposed modifications will result in a development that is of excessive visual bulk and scale when viewed from adjacent residential properties and the streetscape.
3. The approval of the Modification Application is contrary to the public interest.
4. The modifications proposed by the Modification Application have already been undertaken and no power exists to retrospectively approve such works.
The fact that some of the works the subject of the Modification Application have already been carried out is, of course, neither a bar to the power of the Court to modify the Consent under s 4.55(2) of the EPA Act nor a relevant factor by itself in determining whether to exercise that power: Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [33]. In determining the appeal, I have therefore disregarded the fact that some of the works the subject of the Modification Application have already been carried out.
On 26 May 2022 an application for a building information certificate under Div 6.7 of the EPA Act was made on behalf of the Applicant. That application had not been determined when the appeal came on for hearing.
In the course of tendering the applicant's documentary evidence, the Applicant tendered a revised set of architectural plans (Ex B, tab 2) which identify the proposed building work in purple, the building work that is already completed (and is subject to the application for a building information certificate) in blue and the approved building fabric in black. These plans respond to some extent to the Council's amended contentions, which sought the provision of "as built" or "works as executed" plans to identify the works that have been completed on the Site.
The Applicant also sought to tender material relating to the structural adequacy of the works that have been completed and I admitted this material into evidence on the basis that the structural adequacy of the already completed building work may be relevant to whether the Consent should be modified to permit the use of those parts of the building for residential purposes. The Council initially opposed the tender but I admitted the plans into evidence (Ex D) subject to the Council being given an opportunity to further amend its statement of facts and contentions, if it felt it necessary to do so, to raise any additional contention flowing from the fact that some works the subject of the modification application had already been completed. A consequence of this was that it was not possible to complete the hearing within the two days allocated and on 7 June 2022 I determined, in accordance with s 34AA(3) of the LEC Act, that in the circumstances of the case it was appropriate that the proceedings not continue to be dealt with under s 34AA(2) of the LEC Act. Subsection 34AA(3) is as follows:
(3) The Court or the Commissioner may at any time, if the Court or Commissioner thinks it appropriate in the circumstances of the case, determine that proceedings are not to be dealt with or are not to continue to be dealt with under subsection (2). A determination may be made on the motion of the Court or Commissioner or on application by the parties.
Pursuant to s 34AA(4) of the LEC Act, the hearing then proceeded in accordance with 34C of the LEC Act. On 7 June 2022, the proceedings were adjourned for further hearing until 1 July 2022 and the Council was granted leave to amend its statement of facts and contentions on or before 17 June 2022, limited to the raising of contentions relating to the structural adequacy of works the subject of the modification application which have already been constructed. I also directed that any additional evidence relating to any such new contentions was to be filed and served on or before 24 June 2022. I note that the Council ultimately found it unnecessary to further amend its statement of facts and contentions or to lead any evidence relating to the structural adequacy of the completed building works.
Jurisdictional prerequisites
The Modification Application indicates that the type of modification proposed is a modification in accordance with s 4.55(2) of the EPA Act. That sub-section is as follows:
(2) Other modifications 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 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), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, 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 the period prescribed by the regulations or provided by the development control plan, as the case may be.
Section 4.55(2)(a) of the EPA Act imposes an express statutory limitation on the consent authority's power to modify the Consent. The Consent can only be modified if the consent authority 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.
The applicable legal principles governing the exercise of the power contained in s 4.55(2) of the EPA Act were summarised by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 ("Westlime") at [173] as follows:
"(1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440);
(2) the modification power is beneficial and facultative (Michael Standley at 440);
(3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]);
(4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8);
(5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]);
(6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]);
(7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]);
(8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik);
(9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and
(10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52])."
Section 4.55(2) of the EPA Act requires the Court to form the positive opinion of satisfaction that the development as proposed to be modified is substantially the same development as the development for which consent was originally granted. In Arrage v Inner West Council [2019] NSWLEC 85 ("Arrage") (at [27] to [28]), Preston CJ observed that in most cases the most instructive (but not the only) way to identify whether the modified development is substantially the same as the originally approved development is to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required.