Section 96
23The parties disagree on the primary test pursuant to s 96(2)(a) of the Act as to whether the development is substantially the same as the development for which consent was originally granted. Plans which indicate the extent of the variations, including overlays of the approved floorplates with that proposed were prepared by Mr Tayler, architect and tendered with his Expert Report as Exhibit 3. These plans provide excellent assistance to the Court in determining the extent of changes proposed.
24If the application fails this jurisdictional test, it must fail, even if I determine that the modified plans merit consent. Guidance on this assessment is found in Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, where, at paras 55 and 56, Bignold J described the process for consideration of proposed modification of development as follows:
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).
25It is clear from Moto that there are two elements to be determined, they are a qualitative and a quantitative assessment of whether the modified development would be one that is substantially the same development as that originally approved.
26It is agreed that the proposal utilises similar footprints to that which was originally approved. The building envelopes, whilst also similar differ, with Buildings AB, EF, G and H reduced and Building CD increased in area. The main changes are to the number of units, the size, layout and orientation of those units and the facilities provided within them, the external appearance of the building resulting from those changes and the construction of a second basement level to accommodate additional carparking.
27The additional 26 units are contained within Buildings CD, EF and G. to achieve this, the floor areas of the units and number of bedrooms have been reduced and areas such as ensuites and laundries deleted, replaced by laundry cupboards in some of the units. Floor areas have been reduced significantly as follows:
The consent
2 bed units 109.4m 2 to 118.5m 2
3 bed units 140.3m 2 to 142.3m 2
Proposed
Studio 40.39m 2 to 43.06m 2
1 bed units 51.94m 2 to 66.58m 2
2 bed units 82.03m 2 to 107.86m 2
2 bed + study 118m 2
3 bed units 124.78m 2 to 125.5m 2
28Originally, all of the units with the exception of those within Building H, had aspect to the north and south with the corner units also having east or west aspects. To accommodate the additional units, larger units have been divided and a central core provided to service the whole floor whereas the original plans provided for groups of two units to be serviced by an individual lobby and lift area, again with the exception of Block H. This results in a number of single aspect units, some north facing, some with small north facing windows in the corner to facilitate solar access and others south facing. Total number of single aspect units is 44 however, six of these are two storeys with alternate access on the upper level to facilitate flow through ventilation.
29Mr Hale for the council argues that the changes to the development, particularly in relation to unit size, mix, configuration and quality are such that the development is not substantially the same. The evidence provided demonstrates that the consent was granted with a variation to the FSR controls of the LEP. Mr Hale states that the variation was allowed due to high quality of the units, particularly in relation to the facilities provided (ensuites, laundry rooms and lifts) and the large floor areas and that on this basis, the size and quality of the development was a particularly important, material and essential feature of the development as originally approved.
30Review of the evidence provided does not support this argument, rather, the council's assessment of the objection to the FSR control pursuant to the provisions of State Environmental Planning Policy No. 1 (SEPP1) suggest that the approval was granted on the basis of the application satisfying the objectives of the control, in particular, that it satisfies the primary zone objectives, is compatible with the scale of existing residential development in the locality and its architectural character and design does not adversely affect existing residential development in the locality. Mr Hale argues, on the evidence of Ms Bell, town planner for the council and Mr Tayler, architect for the council, that applying the provisions of clause 115(1A)(c) of the Environmental Planning & Assessment Regulation 2000 that there is a diminution from the design quality of the development and accordingly, this means that the development is not substantially the same. Applying Moto, he argues that there is a significant qualitative as well as quantitative change to the development, that the quality aspects of the development were an essential feature of the development and therefore it must fail.
31Mr Hemmings for the applicant disagrees and states that the Design Verification Statement and compliance table incorporated within the Statement of Environmental Effects (SoEE) submitted with the application show that the development is consistent with the design objectives, is compliant with the provisions of the RFDC and is of a high architectural standard. He agrees that there are changes to the design and appearance of the development however argues that the change does not radically transform the development and makes reference to the findings of Stein J in Vacik Pty Ltd v Penrith City Council NSWLEC, 24 February 1992 unreported, where he states the test in the following terms:
" 'substantially' when used in the section means essentially or materially having the same essence."
This view was approved by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd [1998] 97 LGERA 433 at 440.
32Mr Hemmings relies on the evidence of the town planning experts, Mr Fletcher for the applicant and Ms Bell. They agree that the FSR and building height remain essentially the same. Mr Fletcher details the extent of works that remain the same, with qualifications as stated, which is:
+ Nature of the development being a number of residential flat buildings;
+ Number of buildings (five);
+ Height of buildings and storeys and dimensions;
+ Rooflines, building setbacks and building footprint;
+ Gross floor area (essentially the same);
+ Location of carparking, being within a basement (essentially the same albeit that an increased number of car spaces are provided;
+ Location of the driveway and carpark entry;
+ Relationship to neighbouring properties in terms of the use, location, height and scale of buildings remains essentially unchanged;
+ The landscaped area provided and the proposed distribution of private and community space remains essentially the same.
33Ms Bell considers that the changes to development are such that it is not substantially the same and cites the number of units, the fact that the proposal does not provide units which accord with DCP35 in terms of unit sizes, internal and external amenity, the additional basement carpark level, changed orientation and layout of units and associated impacts of balconies and the deletion of lift from Building FE.
34Having considered the quantitative and qualitative changes, I do not consider the changes to the building design, apartment mix, number of dwellings and carparking spaces are such that the final built form, in terms of its scale, bulk, appearance or use would not be substantially the same as that approved under the consent, nor do I have sufficient evidence that the size/quality of the units as put by the council, were an essential element of the approved development. Accordingly, I find that the test in s 96(2)(a) is passed and it is now necessary to undertake a merit assessment of the application.