Kolpos Pty Ltd v Canterbury Bankstown Council

Issues

1. The Council's contentions can be summarised as:

• The modification applications are not substantially the same development as the originally approved development and the Court therefore does not have jurisdiction to approve the modification applications.
• The written requests for an exceedance of the height of buildings development standard that form part of the Development Applications do not demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; nor that there are sufficient planning grounds to justify contravening the development standard; nor is the contravention of the development standard in the public interest.
• The proposal would result in a building that is excessive in height, bulk and scale, which represents an overdevelopment of the site.
• The proposal will result in unacceptable overshadowing of surrounding residential properties.
• The proposal is inconsistent with the design quality principles in State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP 65).

The site and its context

1. The site consists of 418-422 Canterbury Road, Campsie (eastern site) and 424-426 Canterbury Road, Campsie (western site). The eastern site has a site area of 1,723sqm and the western site has a site area of 1,424.8sqm.
2. The site is on the southern side of Canterbury Road, between Bexley Road to the west and Scahill Street to the east. The site has been cleared.
3. There are residential dwellings to the south and east of the site.

Background and the proposal

1. On 22 June 2015, the Council approved DA No. DA576/2014 (western site) for the demolition of existing structures and construction of a 6 storey mixed-use development containing 4 commercial tenancies and 50 residential units, over 3 levels of basement care parking containing 84 car parking spaces, subject to conditions.
2. On 22 June 2015, the Council approved DA528/2014 (eastern site) for the demolition of existing structures and construction of a 6 storey mixed-use development containing 4 commercial tenancies and 62 residential units, over 3 levels of basement care parking containing 103 car parking spaces, subject to conditions.
3. On 21 January 2016, the Council modified Consent Nos DA576/2014 and DA528/2014 for minor modifications and external changes to the approved developments.
4. The proposal for the western site is to modify the approved development as follows:

• Provide additional parking spaces within the approved basement levels for a total of 91 cars;
• Construct an additional 2 floors of residential apartments with 9 additional units for a total of 59 units;
• Construct a rooftop terrace;
• Extension of the third basement level to accommodate additional car parking; and
• Construction of a 9m wide laneway including a 1.5m wide pedestrian pathway at ground level adjacent to the southern boundary of the site.

1. The proposal for the eastern site is to modify the approved development as follows:

• Provide additional parking spaces within the approved basement levels for a total of 126 parking spaces;
• Alter the internal layout of apartments;
• Construct an additional two floors of residential apartments with 16 additional units for a total of 78 units;
• Construct a rooftop terrace;
• Extension of the third basement level to accommodate additional car parking; and
• Construct a 9m wide laneway including a 1.5m wide pedestrian pathway at ground level adjacent to the southern boundary of the site.

Planning framework

1. Sub-section 96(2) of the EPA Act regarding modifying consents is in the following terms: (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 5) 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. (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 79C (1) as are of relevance to the development the subject of the application. (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.
2. The site is zoned B5 Business Development pursuant to Canterbury Local Environmental Plan 2008 (LEP 2008). The objectives of the B5 Business Development zone, to which regard must be had, are: • To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres. • To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design. • To support urban renewal that encourages an increased use of public transport, walking and cycling. • To encourage employment opportunities on Canterbury Road and in accessible locations.
3. Schedule 1(1) permits development on the site for the purpose of residential accommodation with consent, but only as part of a mixed use development.
4. The objectives of clause 4.3 Height of buildings are as follows: (a) to establish and maintain the desirable attributes and character of an area, (b) to minimise overshadowing and ensure there is a desired level of solar access and public open space, (c) to support building design that contributes positively to the streetscape and visual amenity of an area, (d) to reinforce important road frontages in specific localities.
5. The height of buildings development standard for the site is 18m (Height of buildings map sheet HOB_007 LEP 2012). There is no floor space ratio (FSR) development standard applying to the site.
6. Clause 4.6 Exceptions to development standards is in the following terms: (1) The objectives of this clause are as follows: (a) to provide an appropriate degree of flexibility in applying certain development standards to particular development, (b) to achieve better outcomes for and from development by allowing flexibility in particular circumstances. (2) Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause. (3) Development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating: (a) that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and (b) that there are sufficient environmental planning grounds to justify contravening the development standard. (4) Development consent must not be granted for development that contravenes a development standard unless: (a) the consent authority is satisfied that: (i) the applicant's written request has adequately addressed the matters required to be demonstrated by subclause (3), and (ii) the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out

Public submissions

1. Three resident objectors provided evidence on-site at the commencement of the hearing. Their concerns can be summarised as:

• The proposal will result in additional overshadowing of the properties to the south and south-east of the site;
• The additional storeys will result in amenity impacts on the adjoining neighbours including noise from residents using their balconies; and
• The proposed laneway will provide a thoroughfare for traffic that would otherwise use Canterbury Road and will result in amenity impacts including noise.

Expert evidence

1. The Council relied on the expert planning evidence of Mr Stuart McDonald and the applicant relied on the expert planning evidence of Mr David Furlong and the expert urban design evidence of Mr Rohan Dickson.

Whether the modification proposals are substantially the same development as the original development consent

1. Pursuant to sub-s 96(2)(a) of the EPA Act, the Court, as the consent authority, may modify the consent if 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.
2. Justice Pepper summarised the legal principles governing the Power to Modify in s 96(2) of the EPA Act in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 [173], as follows: 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]).
3. Commissioner Pearson also summarised the principles for determining whether the development to which the consent as modified relates is substantially the same development, in DA & RA Surry Hills Pty Limited v City of Sydney Council [2015] NSWLEC 1307 [35] - [36], as follows: 35 The requirement that the consent authority be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted is a condition precedent to the exercise of the power to modify a consent: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342 at 347. The power to modify a consent is a power "to alter without radical transformation": North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474. A qualitative and quantitative comparison between the development as modified and the development as originally granted is required, and the result of that comparison must be a finding that the modified development is "essentially" or "materially" the same as the approved development, as held by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309: 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 36 The specific elements and impacts of the two developments must be compared. In Moto Projects, Bignold J referred (at [41]) to Stein J's warning in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 2 against an over generalised description or analysis of the relevant development: In approaching the s 102 exercise one should not fall into the trap of saying that the development was for a certain use - extractive industry and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s 102.
4. The changes proposed to the development consents in the modification applications are summarised in the Council's contention that the development proposed in the modification applications would result in a development that is not substantially the same as the development for which consent was originally granted.
5. The changes proposed by the modification application to the original development consent for the western site are as follows:

• The proposal includes an additional two levels of residential apartments plus a roof terrace level, which will increase the overall height of the building. The Canterbury Road elevation at the top of the parapet is RL54.5, RL54.9 and drops to RL50.6 near Bexley Lane. The Canterbury Road elevation at the top of the parapet of the original consent is RL48.7.
• An increase from 50 residential units to 59 residential units;
• An increase from 84 to 91 parking spaces;
• Basement level 3 is extended to the west and reconfigured to add approximately 10 parking spaces and storage areas and an additional lift core is extended down to the level 3 basement;
• The layout to Basement level 2 is reconfigured with minor changes;
• The layout to Basement level 1 is reconfigured and the basement access is changed to access the basement from the eastern site;
• A 9m wide laneway including pedestrian paths is added to the Ground Floor plan on the southern side of the site. The vehicular access ramp to the basement is deleted. The four residential units are reconfigured and their courtyards deleted to make way for the laneway and each unit has a balcony or terrace. One unit is deleted.
• Level 1 plan deletes two residential units and reconfigures the layout in the south-western part of the floor plan as the building envelope is narrower as a result of the insertion of the laneway below. The rear facing balcony to unit 6 is reconfigured in unit 5 to face east.
• Modifications to Level 2 are similar to Level 1 below.
• Level 3 is modified on the south-western part of the floor plan to remove balconies on the southern side, to insert a recessed balcony to unit 24, to remove landscaping planter and to amend the layout of the units as a result of the narrower building envelope.
• Level 4 is modified to reconfigure the layout of a unit on the northern side and the south-western part of the floor plan is modified to add privacy screens and opaque windows.
• Modifications to Level 5 are similar to Level 4 below.
• The roof terrace on Level 6 of the original approval is modified to add 6 units, facing north or south.
• Level 7 is added in the proposal with 6 units facing north or south.
• Level 8 is added in the proposal with a communal open space area.

1. The changes proposed by the modification application to the original development consent for the eastern site are as follows:

• An additional two levels of residential apartments plus a roof terrace level, which will increase the height of the building. The Canterbury Road elevation at the top of the parapet is RL54.8 and RL54.3. The Canterbury Road elevation at the top of the parapet of the original consent is RL48.7 and approximately RL49.2.
• An increase from 62 residential units to 78 residential units;
• An increase from 103 to 126 parking spaces;
• Basement level 3 is extended to the north to add a second double loaded laneway of parking spaces
• Basement level 2 is reconfigured by moving the ramp which allows for an increase in parking spaces;
• The layout to Basement level 1 is reconfigured and access is changed to access to the western site basement is added;
• A 9m wide laneway including pedestrian paths is added to the Ground Floor plan on the southern side of the site. The vehicular access ramp to the basement is deleted and replaced with a new ramp adjacent to the western boundary accessed from the proposed laneway. Two residential units are deleted and the four residential units are reconfigured. The terraces and landscaping at the rear of the site in the path of the proposed laneway are deleted.
• Level 1 plan increases the setback from the rear boundary and reconfigures the units.
• The units in the south-eastern portion of Level 2 are reconfigured and there are other minor changes to the layout.
• The units in the south-eastern portion of Level 3 are reconfigured and there are other minor changes to the layout.
• There are only minor changes to the layout of Levels 4 and 5.
• The individual outdoor terrace on Level 6 of the original approval is modified to add 9 units.
• Level 7 is added in the proposal with 9 units.
• Level 8 is added in the proposal with a communal open space area and private roof top terraces.

1. I am not satisfied that the modified development proposed is substantially the same as the original development. The list of modifications to both applications demonstrates that in quantitative terms the changes proposed are cumulatively substantial; including significant reconfiguration of the spatial planning of the proposal, redesign of the façade modelling and elevations and considerable changes to the building envelope to provide for the rear laneway and to accommodate the additional two floors and extension to the basements. In qualitative terms, while the use remains the same, the significant increase in apartment numbers, the reconfiguration of the basement access and the addition of the publicly accessible rear laneway have potential impacts in relation to both pedestrian and vehicle access and movements which are substantially different and a radical transformation of the original development. The development as modified cannot be regarded as essentially or materially the same as the development originally approved and consequently s 96(2)(a) is not satisfied and the modification applications cannot be approved.

Contravention of the height of buildings development standard

1. In order for development consent to be granted for a development that contravenes a development standard in LEP 2012, I must be satisfied that the proposal is consistent with the objectives of the development standard and the objectives for development within the zone (cl 4.6(4)(a)(ii) of LEP 2012) and that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a) of LEP 2012) and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)(b) of LEP 2012).
2. The relevant objectives for the height of buildings, at sub-cl 4.3(1) of LEP 2012 are to establish and maintain the desirable attributes and character of an area, to minimise overshadowing and ensure there is a desired level of solar access and public open space, to support building design that contributes positively to the streetscape and visual amenity of an area and to reinforce important road frontages in specific localities.
3. The applicant's written requests for the contravention of the height of buildings development standard in LEP 2012 justifies the exceedance of the development standard on the following bases:

• The approved developments included a contravention of the height of buildings development standard.
• The provision of the publicly accessible rear laneway in the proposal is a benefit to the surrounding residents and an improved planning outcome. The provision of the laneway was to be the subject of a Voluntary Planning Agreement (VPA) and a modification application. That proposal was the subject of a Planning Assessment report to the Extraordinary Meeting of Council held of 14 June 2016 and the report concluded that the provision of the public laneway will have a positive public impact and result in a material public benefit. Council engaged BEM Property Consultants and Valuers to review the draft VPA and they concluded that the applicant's offer of a public road in return for additional floor space was 'fair and reasonable'.
• No significant adverse impacts arise from the non-compliance, other than the modest increase in shadowing of the properties to the south.
• The modest additional increase in shadowing is offset by the improved urban form and addition to public space created by the provision of the laneway and the benefits to the properties to the south of the site as a result of the laneway.

1. Mr Galasso SC submits that the precedent for the height of the proposal has been set by recent approvals in the vicinity of the site along Canterbury Road, which exceed the height of buildings development standard in LEP 2012 for those sites. He drew my attention to a report prepared on the proposal to the Extraordinary Meeting of Council on 14 June 2016 (exhibit 6, tab 21) which includes the following commentary: Although the site was not specifically included in the last LEP amendment, Council has demonstrated a clear intention to increase the height and development potential of buildings along the Canterbury Road corridor in order to see viable redevelopment occur. The proposal will result in a development that represents the desired future character along the Canterbury Road corridor in terms of bulk, scale, setbacks, design quality and built form that is contemplated by the new planning controls and on this basis, the proposal is a suitable development for the site.
2. The planning experts agreed that the numerical exceedance of the height of buildings development standard for the site of 18m is as follows: Building element Western building Eastern building Roof 6.41m 6.12m Parapet 7.1m 7.12m Lift overrun 8.9m 9.25m Overall height at highest point 26.9m 27.25m

1. According to Mr McDonald, the contravention of the development standard at the greatest height of the proposal represents a variation of the 18m height of buildings development standard of 51.67%. I accept Mr McDonald's evidence that the height of the proposal when viewed from Canterbury Road and Scahill Street and from adjoining residential properties to the south-east will be inconsistent with the desired future character anticipated by the suite of planning controls applying to the site. For this reason, the proposal is not consistent with the objective of the height of buildings development standard to establish and maintain the desirable attributes and character of an area.
2. I am not satisfied there are sufficient environmental planning grounds to justify the significant exceedance of the height of building development standard. The introduction of a laneway at the rear of the site does not justify the exceedance of the height of buildings development standard for the site. I do not accept Mr Dickson's evidence that it is Council's intention to provide a continuous rear lane on the southern side of Canterbury Road because there is no evidence that this is so and the blocks to the east of the site, fronting Canterbury Road, are zoned R3. I do not accept that the introduction of the laneway is necessarily a public benefit.
3. The contravention of the height of buildings development standard by the approved development does not justify a further and significant contravention of the height of buildings development standard.
4. I do not accept that there are no significant amenity impacts arising from the non-compliance of the development standard. The additional overshadowing on the winter solstice of the residential properties to the south of the site (annexure D, exhibit 11) is not consistent with the height of buildings development standard objective to minimise overshadowing.
5. The purpose of the height of buildings development standard in LEP 2012 is to control the scale of development. The objective of cl 4.6 of LEP 2012 is to provide an appropriate degree of flexibility in applying certain development standards to certain development. In my view, the proposal does not seek an appropriate degree of flexibility in applying the height of buildings development standard to the particular constraints and opportunities of this site, instead it ignores the height of buildings development standard for the site altogether. If it is Council's intention to increase the height and development potential of buildings along the Canterbury Road corridor, then the proper mechanism for doing so is a planning proposal. As held by Cripps J in Hooker Corporation Pty Limited v Hornsby Shire Council (1986) 130 LGERA 438, 441: The Court must assume a development standard in a planning instrument has a purpose: see SCMP Properties Pty Ltd v North Sydney Municipal Council (1983) 130 LGERA 351, Gergeley & Pinter v Woollahra Municipal Council (1984) 52 LGRA 400, Claude Neon v Rockdale Municipal Council (unreported, Land and Environment Court, NSW, 10 September 1985) and Hooker-Rex Estates v Hornsby Municipal Council (unreported, Land and Environment Court, NSW, 27 July 1983). Furthermore it is now established that although the discretion conferred by SEPP No 1 is not to be given a restricted meaning and its application is not to be confined to those limits set by other tribunals in respect of other legislation, it is not to be used as a means to effect general planning changes throughout a municipality such as are contemplated by the plan-making procedures set out in Pt III of the Environmental Planning and Assessment Act.

Conclusion

1. Having regard to both the quantitative and qualitative changes proposed by the modification applications, I am not satisfied that the modified development proposed is substantially the same as the original development for the reasons set out in the judgment and as this requirement is a condition precedent to the exercise of the power to modify a consent, consent must be refused.
2. I am not satisfied that the proposal is consistent with the objectives of the height of buildings development standard in LEP 2012, nor that the applicant's written request has adequately addressed that compliance with the development standard is unreasonable or unnecessary in the circumstances. I am not satisfied that there are sufficient environmental planning grounds to justify contravening the height of buildings development standard for the site in LEP 2012.
3. Given my findings in relation to there being no power to approve either the modification applications or the development applications, it is not necessary to deal with the Council's remaining contentions.

Orders

1. The orders of the Court are: 1. The appeals are dismissed. 2. The Modification Application No.s DA528/2015/B and DA576/2015/B for an additional two floors to the approved development, rear laneway and changes to the basement parking and apartment layouts at 418-422 and 424-426 Canterbury Road, Campsie, are refused. 3. The Development Application No.s DA 375/2016 and DA 376/2016 for an additional two floors to the approved development, rear laneway and changes to the basement parking and apartment layouts at 418-422 and 424-426 Canterbury Road, Campsie, are refused. 4. The exhibits, other than exhibits 1, 2, 3 and 4, are returned.

Susan O'Neill Commissioner of the Court

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: 10 May 2018