Geluk v Mosman Municipal Council

Environmental Planning and Assessment Act 1979

1. Section 4.55(2) of the EP&A Act provides 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. Subsections (1) and (1A) do not apply to such a modification.

Mosman Local Environmental Plan 2012

1. Development on the Subject Site is subject to the provisions of the Mosman Local Environmental Plan 2012 (MLEP). The following provisions of MLEP are of particular relevance in this appeal: 1. Clause 2.1, which establishes land use zones within the area to which the plan applies as provided in cl 2.2 of MLEP. 2. The Subject Site is zoned R2 Low Density Residential, and under the provisions of cl 2.3 of MLEP, the objectives of this zone are to: provide for the housing needs of the community within a low density residential environment. enable other land uses that provide facilities or services to meet the day to day needs of residents. retain the single dwelling character of the environmentally sensitive residential areas of Mosman. maintain the general dominance of landscape over built form, particularly on harbour foreshores. ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. ensure that development is of a height and scale that seeks to achieve the desired future character. encourage residential development that maintains or enhances local amenity and, in particular, public and private views. minimise the adverse effects of bulk and scale of buildings. 1. Clause 6.4 of MLEP concerns scenic protection, and, relevantly in the current appeal, requires that development consent must not be granted to any development on land to which the clause applies unless the consent authority is satisfied that: 1. measures will be taken, including in relation to the location and design of the proposed development, to minimise the visual impact of the development to and from Sydney Harbour; 2. the proposed modification would maintain existing natural landscapes and landforms. 1. The Dictionary in MLEP defines a storey as: a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include - (a) a space that contains only a lift shaft, stairway or meter room, or (b) a mezzanine, or (c) an attic.

Mosman Residential Development Control Plan 2012

1. The Proposed Modification is subject to the provisions of Mosman Residential Development Control Plan 2012 (MRDCP), and following are the provisions of relevance to this appeal: 1. Section 4.2 concerns the siting and scale of proposed residential developments, and: 1. it notes that: 1. the siting and scale of a building - its height, floor space ratio, setback from site boundaries and relationship in size to adjoining buildings - set the dominant character of any development; and 2. controls for these elements are important to facilitate an acceptable siting and scale of development that maintains a satisfactory relationship with neighbouring properties and the wider street context; and 3. buildings should be designed "from the ground up" with ground floors located at or near ground level. 1. Objective O2 requires that residential developments have a scale of development which is not excessive and is consistent with the existing or desired future townscape area character; 1. Section 5.1 concerns streetscape and building design, and: 1. it notes that streetscape refers to the way a street looks and is fundamental in defining neighbourhood identity and townscape area character. Streets are composed of buildings, landscape elements, fences, footpaths, driveways and utility services; it is the arrangement of these components and their visual appearance that influences the streetscape character. 2. required, through objective O1, that development should be of a scale and appearance which is in keeping with the street and desired future townscape area character. 1. Section 7.4 (18) which provides planning controls for the Rosherville/ Wy-ar-gine Townscape area, and which includes the following two objectives in relation to building form and design: " … (d) Limit bulky mega dwelling houses with horizontal emphasis across allotments. (e) Facades of large dwelling houses should be well modulated so that their form and scale relates to the existing streetscape and topography, and are not dominating when viewed from the harbour and neighbouring properties. …"

Contentions

1. The Subject Application was made under s 4.55(2) of the EP&A Act, the provisions of which are provided above at [9].
2. Section 4.55(2)(a) of the EP&A Act provides that a consent authority may approve a modification to a consent if 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).
3. The Respondent contended that the Subject Application should not be approved because, if approved, the modified development would not be substantially the same development, quantitatively or qualitatively, as that for which consent was originally granted.
4. Under the provisions of s 4.55(2) of the EP&A Act, the Court must be satisfied that the modified development would be substantially the same development as that for which consent was originally granted in order to modify the development's consent.
5. Should the provisions of s 4.55(2) be satisfied, such that the Court's powers to modify the consent are enlivened, the Respondent contended that the Subject Application should, nevertheless, still be refused because the proposed enclosure of the rooftop pergola would result in: 1. a building that was of an unacceptable bulk and scale; 2. a building that would not be consistent with the objectives of the Subject Site's R2 Low Density Residential zoning (see above at [10(2)]); 3. a built form that was contrary to the requirements of cl 6.4 of MLEP (see above at [10(3)]; 4. adverse amenity impacts on neighbouring residents.
6. Finally, the Respondent said that approval of the Subject Application would not be in the public interest having regard to the matters raised in submissions of objectors.
7. As a consequence of these contentions, I have framed the principal questions for resolution in the appeal, and the order in which they should be addressed, as follows: 1. would the modified development be substantially the same development as that for which consent was originally granted, and before that development was modified? 2. is the bulk and scale of the proposed modification acceptable? 3. does the proposed modification include measures, including in relation to its location and design, to minimise the visual impact of the development to and from Sydney Harbour? 4. does the proposed modification give rise to any amenity impacts on neighbouring residents, and are these acceptable? 5. is the proposed modification consistent with the objectives of the Subject Site's R2 zone? 6. is the proposed modification in the public interest having regard to the matters raised in submissions of objectors?

Is the modified development substantially the same development as that for which consent was originally granted, and before the development was modified?

1. As noted above at [9], s 4.55(2)(a) of the EP&A Act provides that a consent authority may approve a modification to a consent if 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).
2. Further, as noted above at [1], the development for which consent was originally granted under development application DA8.2016.114.1, and before that consent as originally granted was modified (the Approved Development), was for demolition of an existing structure and construction of a multi-storey dwelling house, swimming pool, plus rooftop terrace and landscaping.
3. The Respondent submitted, within its statement of facts and contentions, that: 1. the original consent was for a three-storey detached dwelling, with a rooftop terrace, and with a floor space ratio of 0.765:1; and 2. the Subject Application seeks an approval that would result in a four storey-detached dwelling, with a rooftop terrace, and with a floor space ratio of 0.85:1 (and increase of some 11%).
4. The Applicant submitted that the Respondent's characterisation of the Approved Development was inaccurate, and said that: 1. based on the definition of a storey within MLEP (see above at [10(4)]), the Subject Application would not result in the development having a four-storey form because: 1. no part of the pergola structure that is proposed to be enclosed extends over a part of the building below that which contains more than two storeys; and 2. a part of the pergola structure that extends to the east, and which may lie above a three-storey element of the Approved Development, is not proposed to be enclosed; 1. the increase in gross floor area that would result from the proposed enclosure of the pergola would be 27m2, and, if approved, would increase the FSR of the development from 0.653:1 to 0.7:1 (an increase of 4.7%).
5. I have considered the submissions of the Parties in relation to whether the development that would result from approval of the Subject Application would be substantially the same as that for which consent was originally granted.
6. As I noted in my decision in Arrage v Inner West Council [2018] NSWLEC 1628 (at [23]), and drawing on the decisions of Moto Projects No 2 Pty Limited v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 2020; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; Trinvass Pty Ltd V The Council of the City of Sydney [2018] NSWLEC 77 and Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8: "I draw from these paragraphs that: the Applicant seeking the modification bears the onus of satisfying me that the proposed development as modified will be substantially the same (Vacik); the process of permitting modification of a development consent is one which should be regarded as beneficial and facultative, notwithstanding the onus of proof relying on the Applicant (Michael Standley); the result of a comparison between the development, as currently approved, and the development as proposed to be modified must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development (Moto); 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) (Moto)".
7. In my assessment, the essential elements of the development for which consent was originally granted, and before that consent as originally granted was modified, is its bulk and scale as represented by the number of storeys within the Approved Development, and its FSR. I note that both of these elements were the subject of submissions by the Parties and testimony from their expert planners: Mr Kerry Nash, for the Respondent, and Mr Nick Juradowitch, for the Applicant.
8. I note that the Parties differed in their characterisation of the number of storeys in the Approved Development that was the subject of the Original Consent. The essence of that difference rested on whether the building was, as the Respondent said, a three-storey structure, or was, as the Applicant said, a structure that was, in part, three-storey and, in another part, two-storey.
9. In my assessment, this difference in the characterisation of the number of storeys in the Approved Development is less important than the following: 1. the Subject Application would add a space within the Approved Development that is situated between one floor level and, as there is no floor above, the ceiling or roof above; 2. the pergola that is proposed to be enclosed is not proposed to be either a space that contains only a lift shaft, or a stairway, or a meter room, or a mezzanine, or an attic, 3. as a consequence of the facts at [(1)] and [(2)], the proposed enclosure of the pergola must constitute the addition of one extra storey to the Approved Development, pursuant to the definition of a storey within MLEP (see above at [10(4)]).
10. The proposed addition of an extra storey to the Approved Development is, in my assessment, a significant quantitative change to the development compared to that which was the subject of the Original Consent, and before that development was subsequently modified.
11. As the Applicant observed in the proceedings, at the point on the rooftop currently occupied by the pergola the Approved Development is of a two-storey form. The addition of an additional storey at that point would increase the number of storeys at that point from two to three storeys, representing a 50% increase in that quantitative dimension of the Approved Development.
12. The Respondent also submitted, supported by the evidence of Mr Nash, that the enclosure of the pergola would also represent a qualitative change to the Approved Development as the function of the pergola structure would change from one of being an outdoor (albeit covered) recreational area, to one of being a habitable room. I agree with, and embrace, this submission.
13. In summary, based on my assessments above at [29] and [30], I am not satisfied that the Subject Application would result in a development that would be, either quantitatively and qualitatively, substantially the same development as the Approved Development as it was when the original consent was granted, and before it was modified by the two applications referred to above at [2].
14. As a consequence of my assessment above at [31], I conclude that the provisions of s 4.55(2)(a) are not met, and, as a consequence, I do not have jurisdiction to modify the consent as sought by the Applicant.
15. In reaching this conclusion, I have not addressed the provisions of s 4.55(3) of the EP&A Act, in relation to giving consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
16. I note that, while these matters would have been considered should I had found that the Subject Application would result in a development that was substantially the same, I am not obliged to consider them at this point.
17. As noted by Preston CJ in the matter of Arrange v Inner West Council [2019] NSWLEC 85 (at [20]): Accordingly, the Commissioner was not bound by the terms of s 4.55(2)(a) to compare the modified development and the originally approved development 'in their proper contexts (including the circumstances in which the development consent was granted)'. Insofar as the Commissioner might be seen not to have given consideration to the circumstances in which the development consent was granted, that did not involve him failing to apply the correct test: he was not obliged in law to do so.
18. Having made that observation, I do note that within the report prepared by Council officers in relation to the assessment of the Applicant's original development application (tendered as part of Exhibit 1 at the hearing), and in the context of the grant of the Original Consent, the assessing officer had identified that the Subject Site was subject to the provision of cl 4.3A of MLEP which imposes a development standard setting a maximum two storey built form for development on the Subject Site.
19. I also note that in its submissions, the Applicant had drawn the Court's attention to the decision in the matter of 258 Crows Nest Development Pty Ltd v North Sydney Council [2006] NSWLEC 420 (referred to hereafter as the Crows Nest decision) in which the Commissioner had held that the conversion of a roof terrace and pool to an apartment would "remain substantially the same". In relation to this decision, I make the following observations: 1. I am not able to ascertain from the judgment the full context and reasons that formed the basis for that Commissioner's decision; 2. while the Commissioner said (at [23) that she "would discuss below", her reasons for finding that the changes to the Approved Development were not such as to reach a conclusion that the proposal is not substantially the same development, no such reasons for that finding were subsequently provided. Rather, what reasons were provided in the balance of the judgment related, in my view, to matters relating to the merits of the proposal, as would now be evaluated in response to the provisions of s 4.15(1) of the EP&A Act; 3. the Commissioner did note submissions made on behalf of an Intervenor, but not embraced by her, that the conversion of a pool and terrace space, in this case a communal area, to an apartment: 1. was not substantially the same, on a quantitative basis, because of the change would add one storey to the Approved Development; 2. was not substantially the same, on a qualitative basis, for reasons of changes to residential amenity that would follow approval of the modification sought by the Applicant; 1. I am not bound to follow the decision of the Commissioner in the Crows Nest decision, noting, as I did above, that the full context and reasons for the Commissioner's decision in that matter cannot, in my view, be ascertained from the judgement.
20. As I have concluded above (at [32]) that the provisions of s 4.55(2)(a) are not met, and, as a consequence, I do not have jurisdiction to modify the consent as sought by the Applicant, the appeal must be dismissed and it is unnecessary for me to address the remaining contentions in this appeal.

Orders

1. The orders of the Court are: 1. The appeal is dismissed. 2. The exhibits are returned, with the exception of Exhibits B, D and 1.

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