Hatch v Northern Beaches Council

Environmental Planning and Assessment Act 1979

1. The modification application now before the Court was made under s 4.55(2) of the EPA Act, which provides as follows: (2) 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.
2. Should the modified development be considered "substantially the same" then the provisions of s 4.55(3) and s 4.55(4) are also relevant to this appeal. They provide: (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.
3. Section 4.15(1) of the EPA Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest

Manly Local Environmental Plan 2013

1. The following paragraphs [22] to [25] and [27] set out the provisions of the LEP that are of relevance, or potentially of relevance, in this appeal.
2. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of the LEP. The site is zoned R1 General Residential under the provisions of cl 2.3 of the LEP. The objectives of this zone are: • To provide for the housing needs of the community. • To provide for a variety of housing types and densities. • To enable other land uses that provide facilities or services to meet the day to day needs of residents.
3. Clause 4.3, which concerns the height of buildings. The site has a height control of 8.5 metres as identified on the LEP's Height of Buildings Map. The approved development and the development as modified comply with this height limit and building height is not a matter of contention.
4. Clause 4.4, which concerns floor space ratio (FSR). It provides as follows: 4.4 Floor space ratio (1) The objectives of this clause are as follows: (a) to ensure the bulk and scale of development is consistent with the existing and desired streetscape character, (b) to control building density and bulk in relation to a site area to ensure that development does not obscure important landscape and townscape features, (c) to maintain an appropriate visual relationship between new development and the existing character and landscape of the area, (d) to minimise adverse environmental impacts on the use or enjoyment of adjoining land and the public domain, (e) to provide for the viability of business zones and encourage the development, expansion and diversity of business activities that will contribute to economic growth, the retention of local services and employment opportunities in local centres."
5. Clause 4.5(2) provides: (2) Definition of "floor space ratio" The floor space ratio of buildings on a site is the ratio of the gross floor area of all buildings within the site to the site area.
6. The site has a FSR control of 0.6:1 as identified on the LEP's Floor Space Ratio Map. The development as originally approved has a FSR of 0.6:1 and therefore compliant, and the development as proposed to be modified has a FSR of 0.86:1.
7. The following definitions in the Dictionary to the LEP are relevant to the application: basement means the space of a building where the floor level of that space is predominantly below ground level (existing) and where the floor level of the storey immediately above is less than 1 metre above ground level (existing). gross floor area means the sum of the floor area of each floor of a building measured from the internal face of external walls, or from the internal face of walls separating the building from any other building, measured at a height of 1.4 metres above the floor, and includes: (a) the area of a mezzanine, and (b) habitable rooms in a basement or an attic, and (c) any shop, auditorium, cinema, and the like, in a basement or attic, but excludes: (d) any area for common vertical circulation, such as lifts and stairs, and (e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and (f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and (g) car parking to meet any requirements of the consent authority (including access to that car parking), and (h) any space used for the loading or unloading of goods (including access to it), and (i) terraces and balconies with outer walls less than 1.4 metres high, and (j) voids above a floor at the level of a storey or storey above. storey means 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.
8. In the subject modification application, the third partially below ground level is defined as a "storey" but does not satisfy the meaning of "basement" as defined in the LEP. The storage room is included in the definition of gross floor area as it is not located in a "basement" as defined.

Manly Development Control Plan 2013

1. The Manly Development Control Plan 2013 (the DCP) also applies to the subject development. The DCP provisions that are of particular relevance in this appeal are as follows: 1. Part 3.5.3 which seeks to optimise natural ventilation, and provides (similar to the Building Code of Australia) that there be an "area of unobstructed window openings…equal to at least 5% of the window area served." 2. Part 4.1.2 which relates to height of buildings and in particular 4.1.2.2 which provides for a maximum of two storeys, with variations to the maximum number of storeys able to be considered "where specific physical site constraints warrant an exception", provided the numeric height standard in the LEP is complied with, and where that storey "satisfies the meaning of basements in the LEP".

Contentions

1. The contentions pressed by the Council can be summarised as follows: 1. The Applicant's modification application is not substantially the same development as the development for which consent was originally granted, as required under s 4.55(2) of the EPA Act. The amended proposal adds a third habitable storey and results in a non-compliance with the FSR control. The amended development is not (therefore) "essentially or materially the same as was originally approved." 2. The Applicant's modification application represents a form of 'development by creep', particularly as the modification includes an extra habitable storey and substantial increase in the FSR, and compliance with the FSR was an "important, material and essential element of the original development". 3. The additional habitable basement level results in the development having a non-compliant FSR of 0.86:1, inconsistent with cl 4.4 of the LEP, (which provides for a FSR of 0.6:1), including the FSR objectives, and contributes to unreasonable amenity impacts. 4. The relocation of the pool pump room from the basement plant room to an unknown location outside the building is likely to create unacceptable noise impacts.

Is the modified development substantially the same as the development for which consent was originally granted?

1. As noted previously at [1] and [2], this is an appeal against the Council's deemed refusal of a modification application made pursuant to s 4.55(2) of the EPA Act. Under that section, the Court must be 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). Satisfaction on this point enlivens the power of the Court to grant consent to the modification application.
2. As pointed out by Mr Gough for the respondent, in his written outline of submissions, if not so satisfied, the Court has no power to approve the modification application irrespective of whether it may be worthy of approval on its merits: Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46.
3. The statutory test in s 4.55(2)(a), requiring that the consent authority be satisfied as to whether the development as modified is "substantially the same" has been considered in a recent judgment by his Honour, Preston CJ, in the matter of Arrage v Inner West Council [2019] NSWLEC 85 (Arrage). This was a case brought to the Court under s 56A of the LEC Act against the decision by Commissioner Chilcott in Arrage v Inner West Council [2018] NSWLEC 1628. The decision by Preston CJ in Arrage was referred to by Mr McKee for the Applicant in submissions, along with other cases including Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (Agricultural Equity Investments) and Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 (Moto Projects).
4. Mr McKee drew the Court's attention to [173] of Agricultural Equity Investments which sets out ten principles governing the power to modify a consent in what was then s 96(2) of the EPA Act. Mr Gough also acknowledged these principles in his outline of submissions. That paragraph states: "Legal Principles Governing the Power to Modify in s 96(2) of the EPAA 173. The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated 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])."
5. Mr Gough in his outline of submissions under the heading "Circumstances of the grant of consent" (at [14] to [17]) provides a brief history of the development as originally approved by the Court under s 34 of the LEC Act. In that history, Mr Gough referred to the original development application as initially proposing a third basement level, an FSR in excess of the LEP's 0.6:1 limit and a height in excess of the DCP's 2 storey limit. During those Court proceedings, the planning experts, who are the same experts in the current Court proceedings, both agreed that the development should be amended so as to comply with the maximum permitted FSR. The Applicant amended the application to remove the basement level and reduce the FSR to comply with the LEP's FSR development standard, as well as comply with the DCP's two storey height control. The Court granted leave to rely on the amended plans, which contained a note that the basement level had been deleted.
6. Mr Gough drew comparisons between these "circumstances of the grant of consent" surrounding the original application to those referred to in the judgment of Commissioner Smithson in FPG No. 2 Pty Ltd v Randwick City Council [2018] NSWLEC 1300 (FPG No 2) and in the judgment of Commissioner Morris in Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241 (Innerwest 888). In both these cases, which required the respective Commissioners to determine whether the development as modified was essentially the same as that originally approved, the Commissioners took into consideration the fact that the development as originally approved was the result of changes made to "material or essential elements" in order to obtain the respondent councils' agreement to an approval.
7. Mr Gough submitted that changes to a development made during the s 34 process and made in order to reach an agreement, are a relevant "circumstance in which the consent was granted" and helped determine what constituted "essential elements" of the development.
8. In the case of FPG No 2, Commissioner Smithson accepted that the original development as approved did not have a roof terrace because "It was an element proposed but then removed by the applicant as Council would not have granted the approval were it retained" and that removing it "made a material difference to the nature of the development".
9. In the case of Innerwest 888, Commissioner Morris noted that the original consent provided as a condition of consent that the building be reduced in height by one storey and that this "was an essential element of the council's determination".
10. Arrage assists in clarifying the application of some of the principles in Agricultural Equity Investments and in undertaking a comparative analysis of the approved and modified development in determining satisfaction of the statutory test in s 4.55(2)(a) of the EPA Act. In Arrage, Preston CJ addressed whether or not the Court is obliged in law to compare the modified development and the originally approved development "in their proper contexts (including the circumstances in which the development consent was granted)" as suggested by Bignold J in Moto Projects.
11. In Arrage, Preston CJ at [19] states: "Bignold J did suggest in Moto Projects that the comparative exercise required by the former s 96(2), now s 4.55(2), of the EPA Act involves a comparison of the proposed modified development and the originally approved development 'in their proper contexts (including the circumstances in which the development consent was granted)', but this did not substitute a different or additional test for the test imposed by the statutory provision giving the power to modify a development consent. The test remained that stated in the statutory provision that the modified development 'is substantially the same development' as the originally approved development."
12. In [20], Preston CJ goes on to confirm that the Commissioner in the Arrage case was not obliged in law to consider the circumstances in which the development consent was granted.
13. At [21] his Honour goes further and confirms that: "Even clearer than this conclusion that the Commissioner was not obliged in law to apply the dicta of Bignold J in Moto Projects, is that the Commissioner was not obliged to apply the dicta of Commissioner Gray in the Ahmad case. Believing that it was a relevant inquiry to identify the circumstances in which the development consent was granted, the Commissioner in Ahmad, endeavoured to do so by having regard to the facts of that case. There, the original consent had been granted by the Court in accordance with the parties' agreement under s 34(3)(a) of the Court Act. The Commissioner unsurprisingly found little assistance in the Court's formulaic and perfunctory judgment granting consent in accordance with the parties' agreement."
14. Further clarification is provided at [24] to [29] of Arrage, as follows: "24 First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) is between two developments: the development as modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16]. 25 Second, the essential elements are not to be identified 'from the circumstances of the grant of the development consent'; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development. 26 The choice of language in the judicial decisions of 'material and essential features' or a 'material and essential physical element' of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be 'substantially the same' development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word 'substantially' in the former s 102(1)(a) of the EPA Act to mean 'essentially or materially or having the same essence'. That interpretation of the word 'substantially' was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55]. 27 This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be 'essentially or materially' the same or 'having the same essence' as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. 28 That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]. 29 But if that way is selected, then the material and essential features or elements are to be identified from the originally approved and modified developments, not from the circumstances in which the original development consent was granted."
15. Just as Arrage clarifies that the Commissioner in that case was not legally bound by s 4.55(2)(a) of the EPA Act to consider the circumstances in which development consent was originally granted because they are not "mandatory relevant matters", Preston CJ also confirmed at [42] that: "the consent authority is not bound by s 4.55(3) to consider the provisions of applicable environmental planning instruments at the stage of determining whether the precondition in s 4.55(2)(a) is met".
16. At [43], however, Preston CJ goes on to say: "43 This is not to say that it would not be permissible for a consent authority to consider the provisions of applicable environmental planning instruments in determining whether the precondition in s 4.55(2)(a) is met, only that the consent authority is not bound in law to do so. There is a difference between a relevant matter that a repository of power is bound to consider and a permissible matter that the repository of power is entitled to consider."
17. In order to determine whether or not the development as modified is "substantially the same" as the development originally approved, I am guided, amongst other things, by the following distillation of the cases cited: 1. The applicant seeking the modification bears the onus of satisfying the Court that the proposed development as modified will be substantially the same: see Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 (Vacik). 2. The fundamental test I am obliged in law to apply is found in the statutory provision of s 4.55(2)(a), and judicial decisions are not substitutes for the text of the legislation (Arrage). 3. The comparison required by s 4.55(2)(a) is between two developments: the development as modified and the development as originally approved Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342 (Scrap Realty) and the outcome of that comparison is that the two developments be "substantially the same". 4. The word 'substantially' in s 4.55(2)(a) has been held to mean "essentially or materially or having the same essence" (Vacik; North Sydney Council v Michael Standley & Associates Pty Ltd; and Moto Projects). 5. The "material and essential features" or a "material and essential physical element" are derived from judicial interpretations of the statutory test when considering the words "substantially the same" in s 4.55(2)(a): (Arrage). 6. This judicial interpretation "could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry" (Arrage at [27]). 7. If an inquiry into the material and essential features or elements is selected, then they are to be identified from the originally approved and modified development and not from the circumstances in which the original development consent was granted. (Arrage at [29]). 8. An inquiry into the material and essential features or elements involves both a quantitative and qualitative comparative assessment of the originally approved and modified developments (Moto Projects and Arrage). 9. I am not bound by s 4.55(3) to consider the provisions of applicable environmental planning instruments at the stage of determining whether the precondition in s 4.55(2)(a) is met, although that is not to say such a consideration would not be permissible. This is an example of a difference between a relevant matter that I am bound to consider and a permissible matter than I am entitled to consider: (Arrage at [43]).
18. During the hearing, the parties made submissions with respect to the comparison between quantitative and qualitative aspects of the proposed modification in relation to the approved development on the site.
19. Vacik makes it clear that the onus is on the Applicant to demonstrate that the development as modified is substantially the same as that originally approved. Mr McKee summarised the Applicant's arguments in this regard, at [23] to [27] and [29] of his written "Outline of Submissions", essentially as follows: "23 …the inclusion of a basement comprises a minor aspect of the development…and represents a quantitatively minor change to the development as a whole. 24 On a qualitative assessment, the inclusion of a basement and additional floor area in it will not result in any external changes to the approved built form and (referring to the planning experts joint report) there will not be any environmental impacts associated with the modification…The additional floor area is to be contained within the approved building envelope and will not result in any increase in building height. 25 The physical features of the original proposal that present to the street and adjoining neighbours are, on any qualitative assessment, the same…and there are no qualitative changes to the proposed development. The addition of a basement element "could not constitute an alternation that is one of radical transformation from the residential development originally approved. In terms of the word "substantially", it does not essentially or materially change the essence of the residential development as approved. 26 The respondent's case is almost entirely based on the applications (sic) non-compliance with the FSR control. The applicant submits that this can only be considered a quantitative evaluation, and as set out in Agricultural Equity Investments, this approach is considered to be legally flawed…" The Applicant acknowledges that the FSR of the development changes as a result of the modification; "27 …however it is properly characterised as a peripheral aspect of the physical development (being underground) and not an element that forms a part of the 'essence' of the physical development. … 29 The development remains the same as that which was originally approved being the development for the demolition, [as described in words in the original development approval, namely "demolition"] construction of two semi-detached dwellings, plunge pools, detached garage and Torren Title subdivision. [Although it is conceded that in] the circumstances of the amendment proposed, the original description as modified would likely include the words 'and basement' after the words semi-detached dwellings."
20. Whilst the onus is not on the Council to demonstrate that the proposal does not satisfy the test in s 4.55(2)(a) of the EPA Act, Mr Gough for the Council summarised the respondent's position at paragraphs [12] to [13] and [21] in his "Outline of Submissions", as follows: "12 In quantitative terms, the development as modified is an increase in the number of storeys from 2 to 3 (50% increase) and an increase in the gross floor area across the property from 334m2 to 478.26m2 with a corresponding FSR increase from a 0.6:1 to 0.86:1 (46%) (sic). In the context of the overall development, these quantitative differences are significant, and in Council (sic) submission represent a radical transformation of the development. 13 Council contends that the original development's compliance with the FSR standard and number of storeys standard were important, material and essential elements of the original approval. The circumstances in which the development consent was granted is a relevant consideration in the requisite comparative task; Moto at [56]." … "21 In qualitative terms, the development will undergo a radical transformation, as it increases from a low density and low intensity residential land use, to a development providing habitable and useable rooms over three levels. The intensity of the proposed development is more akin to a medium density residential land use: Roseth C in Salanitro-Chafei v Ashfield Council (2005) NSWLEC 366, at [27]."
21. At [14] to [19] of his "Outline of Submissions", Mr Gough sets out the "circumstances of the grant of consent" for the original application including the history of the application as originally lodged, amended before determination, and finally approved.
22. I have carefully considered the evidence before me, and in particular architectural plans of the approved and modified development and the written and oral evidence of the expert town planners, the submissions of Mr McKee and Mr Gough and the various cases cited.
23. Following Arrage, I have not relied on the circumstances in which the development consent was granted as this does not assist me in determining what the differences in the two developments are. Nor have I relied on the overly simplified written word descriptions in the consent notice or application form, as suggested by Mr McKee.
24. Neither have I considered the differences in the appearance of the two developments when viewed externally, which both the planning experts agree do not change, nor the relative environmental impacts of the two developments, also a point argued by the Applicant in favour of the modification application.
25. I have undertaken a comparative analysis of the approved and modified developments as a means of assessing whether or not the modified development is "substantially the same". In undertaking that assessment, I have adopted the approach taken in numerous cases of identifying and comparing the quantitative and qualitative differences between the two developments.

Quantitative comparison

1. The main quantitative features or elements that remain unchanged by the modification application are: 1. The development continues to constitute the construction of two attached dwelling houses, each containing 4 bedrooms, parking for 2 cars, and subdivision of the land into two allotments. 2. The building height (measured from ground level existing to the top of the building), setbacks and landscaped area measurements remain the same.
2. The main quantitative aspects of the approved development that would change under the modification application are: 1. The uncontested gross floor area of the development increases from 334m² in the approved development to 478.26m² in the modified development (an increase of 43%), equating to an increase in FSR from 0.6:1 in the approved development to 0.86:1 in the modified development. 2. The number of storeys increases from 2 to 3 (an increase of 50%).

Qualitative comparison and "habitable rooms"

1. Moto Projects assists in understanding how I might consider the qualitative aspects of the comparative task, as quoted by Mr McKee in his final submission: "Qualitatively appreciated, that difference is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified."
2. An important qualitative difference between the originally approved development and the development as modified is that the modified development includes new rooms that will be used regularly as part of the day to day residential use of the building. Under the modified development, for each of the two dwellings, there is an additional bathroom, a laundry room and store room (all classified as non-habitable rooms) and a gymnasium space, all located in the partially below-ground storey.
3. The Council maintains the gymnasiums are habitable rooms. The Statement of Facts and Contentions at Exhibit 2 refers in numerous instances to the new spaces as containing space or being "habitable" in nature. Both the planning experts in their joint report also refer on occasion to the habitable rooms or level. For example, Mr Prosser at page 2 refers to the "additional habitable levels" in the dwellings and Mr Minto at page 8 of the joint report "notes that there are no openings or windows associated with the proposed habitable rooms within the basement level".
4. During the course of the proceedings, it became clear that the Applicant did not agree that the modification application included any "habitable rooms". As the term "habitable room" is not defined in the LEP, I have considered the Macquarie Dictionary (Sixth Edition) definition of the word "habitable" and most relevantly, the definition of "habitable room" in the Building Code of Australia (BCA) found in the National Construction Code 2019 Volume Two (NCC).
5. The Macquarie Dictionary definition of "habitable" is "…capable of being inhabited". The BCA definition of a "habitable room" is defined as follows: "Habitable room means a room used for normal domestic activities, and - (a) includes a bedroom, living room, lounge room, music room, television room, kitchen, dining room, sewing room, study, playroom, family room, home theatre and sunroom; but (b) excludes a bathroom, laundry, water closet, pantry, walk-in wardrobe, corridor, hallway, lobby, photographic darkroom, clothes-drying room, and other spaces of a specialised nature occupied neither frequently nor for extended periods."
6. The BCA includes various provisions affecting the design and construction of "habitable rooms". The first relevant provision is room height, found at Part 3.8.2 of the NCC which provides that generally the minimum ceiling height for a habitable room is 2.4m, although some concessions (for example ceiling height in kitchens) do apply. The cross-sections in the set of plans approved under the first modification application (Court proceedings No. 2017/241244), and provided in Exhibit A, show a floor to floor height in the 'basement' of 3.0m. Although the floor to ceiling height is not nominated it appears the rooms would all exceed a ceiling height of 2.4m and this is not in contention.
7. The second requirement is for natural light, found at Part 3.8.4 of the NCC. It specifies that all habitable rooms require natural light provided through either windows, "open to the sky or face a court or other space open to the sky or an open verandah, carport or the like" or roof lights that have an aggregate light transmitting area, free of obstructions, of not less than 3% of the floor area of the room and are open to the sky, or a combination of window and roof lights. The minimum size of the window openings must be 10% of the floor area of the room. For a window which is required to provide natural light, it must be not less than 900mm from an adjoining boundary.
8. The modification the subject of this appeal does not provide for any windows in the side boundary walls of the new storey between the natural ground level and the ceiling. Mr McKee for the Applicant confirmed that no windows are proposed and neither was it possible to include them due to the flood level constraint and "for structural reasons". It is also not possible to provide roof lights to the 'basement' level due to the two levels located above.
9. The third requirement is for natural ventilation, found at Part 3.8.5 of the NCC; under which habitable rooms require natural ventilation through "openings, windows, doors or other devices that can be opened, with a ventilating area not less than 5% of the floor area of the room to be ventilated." Similar to the provisions for natural light, there is a concession for rooms adjoining another room with access to natural ventilation, for the required ventilation to be "borrowed" from the adjoining room. There is also the potential for mechanical ventilation, which would need to be employed in this case due to the lack of other adequate openings.
10. None of the new rooms, whether habitable or otherwise, have windows, natural light or natural ventilation. The gymnasium rooms only would have very limited access to "borrowed" light and air from the stair well to the floor above, and no evidence was provided that the BCA requirements could be satisfied in this regard.
11. The habitable room status of a major portion of the new space is an important consideration in distinguishing the qualitative differences between the two developments. It constitutes a significant distinguishing element of the modified development compared to the approved development, and indeed compared to the previous modification which introduced a 'basement' containing non-habitable rooms only: a store room and a plant room.
12. The planning experts in their joint statement both refer to "habitable rooms" in the new level and the Council nominates this as a material difference. On this point, I agree with the Council. Accordingly, in this case, consideration needs to be given to whether or not the gymnasiums are characterised as habitable rooms or not.
13. A gymnasium is not a use within a dwelling that is on the list of 'inclusions' or 'exclusions' in the BCA's definition of a "habitable room", although neither list is exhaustive. Some assistance is given in the 'catch-all' phrase in the list of 'exclusions' in the BCA definition, namely "other spaces of a specialised nature occupied neither frequently nor for extended periods".
14. On this point, I also agree with Council's characterisation of the gymnasiums as "habitable rooms". There is nothing inherent in the design of the gymnasiums to suggest, beyond the inclusion of certain equipment, that they are particularly or exclusively specialised in nature, and there was no evidence provided on the frequency or duration of use. A gymnasium as proposed in these domestic circumstances is best compared to the rooms on the 'included' list in the BCA definition, rather than to the rooms or spaces listed as 'exclusions'. The latter rooms or spaces are transitory in nature and not readily adaptable to or interchangeable with other uses, or 'able to be lived in' to apply the Macquarie Dictionary definition of "habitable".
15. Furthermore, the gymnasiums are not sufficiently distinguishable in their design and physical characteristics from other rooms on the 'included' list of "habitable rooms" under the BCA definition, for example from those of a music room, sewing room or home theatre all of which may have a nominated specialised purpose and be used with a frequency or duration similar to that of a gymnasium.
16. The fact that the gymnasiums do not meet minimum BCA standards for natural light and ventilation, however would not, of itself, exclude them from being defined as "habitable rooms". The reverse applies, such that the first step is the classification of the space, and if classified as a "habitable room", then minimum standards of ceiling height, natural light and ventilation apply in order to achieve acceptable levels of health, safety or amenity. The satisfaction of minimum BCA standards reinforces the importance of the qualitative differences between a third 'basement' level containing habitable rooms and one that does not contain habitable rooms, such as that approved in this case under the first modification.
17. Even if I am incorrect in classifying the gymnasium as a "habitable room", the room could easily become reclassified as a "habitable room" by the residents of the dwelling unilaterally changing its use to, for example, a home theatre, music room, living room, play room or the like, with the consent authority none-the-wiser. The potential multi-purpose and readily adaptable nature of the gymnasium space or its 'ability to be inhabited' is enhanced by the inclusion of a bathroom on the same level and accessed directly off it.
18. Mr Minto agreed in oral evidence that there was effectively nothing stopping residents from changing the use of the gymnasiums to other uses that would thereby reclassify the space as a "habitable room" and Mr McKee specifically dismissed the idea that the use of the room be "time limited" by condition to ensure it was "occupied neither frequently nor for extended periods". Furthermore, I fail to see how such a condition on time limiting the use of this space is enforceable.
19. If approved habitable rooms in the new level would not only be of poor amenity and non-compliant with BCA requirements, they would also be contrary to Condition ANS01 of the approved development consent: a condition for which there no proposal to alter or evidence in support of altering. Condition ANS01 as set out in the draft conditions submitted as Exhibit 3 states: "The minimum furnished (sic) floor levels of new habitable rooms shall be at or above the Floor Planning Level (FPL) of 3.66m AHD. Details are to be provided prior to issue of Construction Certificate. Reason: In order for the proposed development to be compatible with the flood hazard and reduce the risks and cost of flooding to the area."

Findings

1. As a consequence of the comparative analysis referred to above I find that: 1. the modified development is not "essentially or materially" the same as the originally approved development as it differs in important respects, both quantitatively and qualitatively, in comparison to the approved development; 2. the quantifiable differences, namely the additional storey and increases in gross floor area and FSR of the modified development, are substantially different to that of the approved development. 3. a fundamental qualitative difference with the modified development is that some of the spaces in the new additional storey are best described as habitable and classified as "habitable rooms", and these "habitable rooms" are problematic in a number of significant respects. They are, for example, of poor amenity, are non-compliant with the BCA's minimum requirements for natural light and ventilation, and are below the Flood Planning Level in contravention of the existing and proposed Condition ANS01 of the consent; and 4. the Applicant has not demonstrated that the development as modified will be substantially the same as the development as originally approved, notwithstanding the changes.
2. I also find that the precondition within s 4.55(2)(a) of the EPA Act, that I be satisfied that the development as modified would be substantially the same development as the development for which consent was originally granted, is not met.
3. Because I have found that the development as modified is not substantially the same development as originally approved, I have no power to approve this application under s 4.55(2) of the EPA Act.

Orders

1. The orders of the Court are: 1. The appeal is dismissed; 2. The application to modify the development consent granted by the Court for DA0370/2016 is determined by refusal; 3. The exhibits are returned, with the exception of Exhibits A and 1.

Julie Bindon Acting Commissioner of the Court

Amendments 26 September 2019 - Judgment amended. 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: 26 September 2019