Matovina v Leichhardt Municipal Council

Is the modification substantially the same development as the development for which the consent was originally granted? The councils submissions 7Ms Reid, for the council, relies on the evidence of Mr Simon Turner, a town planner with the council. He relies on comments by Stein J in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 where His Honour states In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations. 8In Moto Projects (No. 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280, Bignold J states (at 309 [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 the 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). 9Mr Turner further states that modify means to alter without radical transformation (Sydney City Council v llenace Pty Ltd (1984) 3 NSWLR 414 (at 421)). Modified development can create some changes in the external appearance of the approved development however such changes should not create more than "modifications" to the originally approved development (Tipalea Watson v Ku-ring-gai [2003] NSWLEC 253). 10In undertaking the qualitative and quantitative comparison required, Mr Turner concludes that the modification application is substantially (and in essence different) from the original consent. The exterior appearance of the building has changed in terms of roof height, some roof design change, deletion of openings, addition of openings, the relocation of windows, doors and balcony, changes to chimneys position/height, fencing added, changes to wall setback and alignment, changes to wall treatment and materials and changes to style. 11Also, the open planned layout, enlargement of openings, different location of the windows, doors and balconies and open space may have different amenity impacts for both the occupants of the development and those in adjoining developments. 12Whilst the cumulative effect of these external changes does not result in a building with a different overall scale, bulk or form, it does in terms of its appearance and impacts. Having regards to the building internally, the changes are numerous and essentially include deleting walls, new wall constructions, new opening, repositions of rooms and stairways. In physical terms, while the building is a single residential building, the proposal involves a two-storey development with a proposal that seeks 110 modifications. 13To conclude, Mr Turner states that the development proposed in the modification application is not quantitatively or qualitatively the same development as that approved in the original consent. The development is "radically transformed" and does not retain the essence of the original consent. For these reasons, it is not substantially the same development and cannot be approved. The applicants submissions 14Mr McKee, for the applicant, submits that Vacik and Moto Projects are relevant however importantly, the starting point is the constraint embedded within the concept of "to modify". That has been held to mean "to alter without radical transformation", and in this respect an application to modify which alters an essential characteristic of a development will generally not be permitted by s 96(2)(North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468). 15Other decisions have considered the meaning of the phrase "substantially the same" and have concluded that the modification power is "beneficial" and "facultative" (Houlton v Woollahra Municipal Council (1997) 95 LGERA 201), the question is essentially one of fact (Hope v Council of the City of Bathurst (1980) 144CLR1) and a distinction must be drawn between a matter of substance, as compared to a matter of mere detail: (Sydney City Council v Illenace (1984) 3 NSWLR 414). 16Mr McKee submits that Mr Turner's evidence departs from the required quantitative and qualitative assessment in that it provides a simplistic assessment of the identified 110 modifications to the original development consent. In response, Mr McKee submits that approximately half of the items are repeated from other plans (i.e., noted on ground/first floor plans and again on elevations/sections), at least 18 items are minor internal modifications and the remaining items are minor in nature and generally relate to the relocation of openings. The evidence put forward is of mere detail, and only 3 of the 110 items could be considered to have any substance. These 3 items are:-

1. The creation of windows along the north-eastern facade (next to the proposed stairs) to provide sunlight to the living and kitchen areas. 17Mr McKee submits that the adjoining owners did not raise these windows as an issue of concern, or impacting their amenity. The windows are not readily visible from the street and agreement was reached (and reflected in the plans) on the height and nature of the dividing fence.
2. The minor alteration to the ground floor rear facade to create cafe style doors. 18Mr McKee submits that this amendment cannot be readily viewed from any adjoining neighbour. It will improve amenity and the functionality of the restricted private open space courtyard.
3. The increased setback of the north-eastern wall of bedroom 2 at the first floor level from the boundary (approved setback 900mm, proposed setback now 1960mm). 19Mr McKee submits that this provides greater separation while allowing light (via new skylights) into the living area. The positioning of the windows and in particular the highlight nature (minimum setback of 1650mm) prevents any overlooking from future residents. 20The original consent, DA410/93, approved the "first floor addition of two bedrooms and balcony to semi-detached dwelling house at 72 Rowntree Street, Balmain." The proposed development as modified will result in a development that could not be described as radically different and remains a two storey, semi-detached dwelling with three bedrooms (one previously approved, in addition to the two approved in DA410/93). 21The internal reconfiguration and minor external alterations do not create a radical transformation of the originally approved development and will result in a development that is substantially the same as that approved. The bedrooms, living and kitchen areas remain in similar locations and the essence and the materiality of the original development consent are retained in the proposed modification application. There is no doubt that the proposed development qualitatively remains a two storey semi-detached dwelling with three bedrooms, living and kitchen areas. Findings 22Section 92(2)(a) is a pre-condition to the granting of approval and requires that 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". This task involves both a qualitative and quantitative assessment (Moto Projects). 23If considered in this context, I accept the submissions of Mr McKee for a number of reasons. First, the list of 110 changes identified by Mr Turner is largely repetitive as they identify the same change on different plans. In this case, any reliance on the 110 changes is misleading. The large number of changes is not necessarily a valid consideration of whether the modification is substantially the same development as the development for which consent was originally granted particularly given the minor or repetitive nature of a large number of these changes. If it was meant that the identified 110 changes resulted in a quantitative change to the original approval then this assumption is misplaced. 24Second, I agree with Mr McKee that the substantive changes can be grouped into 3 main areas: the creation of windows along the north-eastern façade, the use of cafe style doors at the rear and the increased setback of the north-eastern wall at the first floor level. With the benefit of the site inspection and an understanding of the original approval and modification application plans, I am satisfied that there can be little valid argument that the modified plans are not substantially the same development as the development for which consent was originally granted. These modifications do not alter the use or the form of the building as originally approved. They do not create any additional amenity impacts and in the case of the modification that provides for an increased setback of the north-eastern wall, this modification actually create an increased level of amenity for the adjoining property. Other beneficial changes include the connection of the balcony to the stormwater system and fixed highlight windows on the first floor. I am satisfied that the modifications contains no matters of substance, but only matters detail that can be appropriately dealt with through a modification application. 25Third, and while Ms Reid argued that "the essence" of the dwelling had changed from a more traditional room layout to an open plan style, I am not satisfied that this is overly relevant in determining whether the modification is substantially the same development as the development for which consent was originally granted. It would not be unreasonable to expect that the internal design of a dwelling designed in 2014 may be different to the internal design of a dwelling approved 1994. In this case, the modification application includes more contemporary features such as enlarged window openings, skylights and an open floor plan to improve the amenity of future residents and at the same time using the same form as the original approval and creating no additional impacts on neighbouring properties. In my view, this could arguably fall within the words in Moto Projects that refer to "the circumstances in which the development consent was granted". 26For these reasons, I can comfortably conclude that based on a qualitative and quantitative assessment, the modified plans are substantially the same development as the development for which consent was originally granted.

Conditions of consent 27A number of conditions of consent were in dispute. Condition 4 28This condition requires that a copy of the Construction Certificate plans are to be provided to the adjoining owners 14 days prior to the commencement of work on the site. The applicant opposes this condition as it is unnecessary. 29I accept the applicants position as the Construction Certificate plans are normally available to inspect from the certifying authority. Condition 16 30This condition requires that a dilapidation report be prepared for 70 and 74 Rowntree Street. The applicant accepts that a dilapidation report should be prepared for 70 Rowntree Street but the report on 74 Rowntree Street should be limited to a photographic record of the rear exterior of the building that is the most proximate to this property. 31I accept the applicant's position as there is little work proposed that could impact on 74 Rowntree Street. The existing exterior wall of the dwelling on the site is to be retained and a new wall constructed inside this wall. I accept that the amount of excavation to construct the new interior wall is unlikely to threaten the integrity of the adjoining building. Condition 17 32This condition requires that prior to the issuing of a Construction Certificate, a "Safety Report" under the WHS Act and Regulations, is to be submitted. This condition is opposed by the applicant as it is unnecessary as it is not an Act administered by the council and simply restates the law. 33I accept the applicants position and the condition can be deleted. Conditions 18(c). 21, 22, 23 and 24 34These conditions refer to the need for a geotechnical report and confirmation that the recommendations in the report had been complied with. The applicant opposes the preparation of a geotechnical report as it is unnecessary for such a small project and the reliance on the use of bedrock is appropriate given that it is clearly visible on site. 35As I understand, the requirements for a geotechnical report and confirmation that the recommendations in the report had been complied with stem largely from the duplex design, the sharing of common features and the need to ensure that there is no damage to 70 Rowntree Street as a result of any building work on the site. 36In accepting that it is important that there is no damage to 70 Rowntree Street, I am not satisfied that a geotechnical report is necessary in this case. There was no suggestion that the sub-soil area of the site required any specialist geotechnical assessment as is, for example, required for steep areas or areas subject to slip. There is no reason why a qualified engineer could not adequately certify the footings and the other structural elements required to construct the alterations and additions to the dwelling. The conditions are to be amended to reflect this conclusion.

The adjoining owners submissions 37The first document raises the question of whether the modification is substantially the same development as the development for which the consent was originally granted. This question has been addressed in the preceding paragraphs and the modification application was found to be substantially the same development. 38The second document provides comments on the structural engineering drawings and the comments are based on consultation with another structural engineer, Mr Hadley. Mr Hadley did not attend the conciliation conference on 14 April 2014 however the adjoining owners reiterated his comments. The comments raise a number of separate issues but all centre on the protection of 70 Rowntree Street during and following the physical construction of the alterations and additions. The issues of particular importance to the adjoining owners related to:

• the provision of a party wall certificate,
• absence of wall bracing,
• absence of details on the chimney support,
• performance of the existing underpurlins,
• appropriate fire rating, and
• the absence of a geotechnical report. 39These issues (and other issues) are addressed by the applicant's structural engineer, Mr Barry. He maintains that the issues identified by the adjoining owners are not matters that should stop the approval of the modification application. Mr Barry is unaware of a party wall certificate but if the concern relates to the party wall not being used for vertical or lateral support, then this is not contemplated. Mr Barry further states that wall bracing will be installed and will satisfy Australian Standard AS1684, the chimney support is addressed through steel stabilisers during construction, the performance of the existing underpurlins is unlikely to be a significant concern given that only one underpurlin is to be affected and if there are issues, these can be addressed by the builder during construction and the matter of the appropriate fire rating is a matter that falls directly to the Principal Certifying Authority. I have rejected the need for a geotechnical report for the reasons set out earlier in the judgment. 40The third document comments on different parts of a report by Mr Barry, including his response to the matters in par 35 and maintains that there are matters still not appropriately addressed to ensure the safety of the adjoining dwelling. 41The concerns of the adjoining owners, in essence, seek greater detail so that they can be assured that there will be no damage to their property as a result of the proposed alterations and additions. I accept that given the nature of the duplex design with a number of common elements that greater care needs to be taken in the construction of the proposed alterations and additions. The concern of the adjoining owners is understandable, however I am not convinced that the details sought by them are necessary given the conditions of consent, particularly conditions 21, 22 and 23. These conditions require certification by a qualified structural engineer for different parts of the construction. In my view, these conditions are more onerous than would be expected for a normal standalone dwelling house and respond to the need for a more sensitive building approach. 42Mr Barry is a qualified structural engineer and he (or another qualified structural engineer) is required to certify the structural adequacy of the alterations and additions, including any potential impacts on the adjoining property. The need to certify certain aspects of the development places a relatively high professional obligation on an engineer and is a matter that would clearly be done with due care and caution. While the adjoining owners relied on advice from their own structural engineer, Mr Hadley was not present at the hearing so his comments were not able to be tested or even discussed with Mr Barry. In this situation, the conclusions of Mr Barry must be preferred.

Orders 43The orders of the Court are:

1. The appeal is upheld.
2. The application to modify the approval granted for alterations and additions to an existing dwelling at 72 Rowntree Street, Birchgrove is approved subject to the consolidated conditions in Annexure A.
3. The exhibits are returned with the exception of exhibits A, B and D.

G T Brown Commissioner of the Court

Amendments 24 June 2014 - Typographical errorsAddresses change to 70 Rowntree Street Amended paragraphs: 1, 35, 36, 38 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: 24 June 2014