Mirvac Homes (NSW) Pty Limited v Parramatta City Council

No. 10370 of 1999 : consent for the development of thirty four (34) residential dwellings and associated civil and landscaping works and for community title subdivision of the land on part of lot 1 in Deposited Plan 739215, subject to conditions.

Condition 1 in each of the consents states: " This consent relates to the following plans ...". The various plans to which the condition relates are identified in the condition by particular letters and numbers.

The modification which is sought is to delete condition 1 in each case and to substitute a new condition as follows:

Development may be carried out generally in accordance with the following plans: [the identified plans], provided that a certifying authority must not issue a construction certificate for building works pursuant to this consent unless it is satisfied that any change from the above plans will involve only minimal environmental impact". In the case of No. 10320 of 1999 the various plans specified in the condition bear different identification lettering and numbering from those specified in the existing condition.

It can be seen that there are three differences of substance between the existing condition imposed on the consent granted by the Court and the condition as sought to be modified and existing condition imposed on the consent granted by the Court. The first is the use of the words " generally in accordance with " the identified plans; the second is that the identified plans are (in respect of No. 10320 of 1999) themselves changed; and the third is the addition of the words which follow the identification of the plans.

The new plans which are sought to be included in the substituted condition show a great number of relatively minor changes of a detailed nature to the residential dwellings which are the subject of the existing conditions. There are some minor changes to building " foot-prints" , to retaining walls and to site levels. Other changes include changes to windows and doors, verandah changes, balcony balustrade style changes, gable roofs instead of hip roofs, windows changed to doors and the like. The applicant relies in support of its application on a report of Mr T P Byrnes, architect and planner, who expresses the opinion that the changes, although numerous, are minor changes of building design which would be generally imperceptible in their collective impacts.

The respondent agrees that the changes are minor, that the development to which the consent as modified relates would be substantially the same development and that there are no merit considerations against the substitution of the new plans for those described in existing conditions.

Mr P C Tomasetti, who appears for the respondent, submits that the form of condition now sought by the applicant is, however. unacceptable and objectionable. There is no objection by the respondent to the substitution of the new plans for those identified in the existing condition. The other changes to the existing conditions are, however, opposed. In his submission, the legislative scheme does not permit an applicant to make minor changes to an approved development and thereby achieve a modification thereof without adhering to the requirement for the making of an application for modification under section 96 of the EP&A Act.

Mr Tomasetti submits that the following provisions of the EP&A Act and of the Environmental Planning Assessment Regulation 1994 ("the Regulation") support his submission. Sub-section 96(1) requires the applicant to make an application to the consent authority to correct any minor errors, misdescriptions or miscalculations. (2) The work for which modification is sought is " development " as defined in section 4, being the erection of buildings. (3) The development is of a kind which would otherwise require development consent: section 76A(1). (4) A development application must be made in accordance with the Regulation: section 78A(1). (5) Clause 46A(1) of the Regulation requires a development application to be in Form 1 to the Regulation. Form 1 is specific on the level of detail required where the application relates to erection of buildings. (6) S imilarly, clause 79C of the Regulation requires an application for a construction certificate to be made in the prescribed form (Form 11) and that form also requires a specific level of detail . (7) Clause 79G (1) of the Regulation prohibits the issuing of a construction certificate unless a certifying authority is satisfied that the design and construction of the building in not inconsistent with the development consent. (8) A consent authority can only determine a development application by granting consent to the application which was made, either unconditionally or subject to conditions, or by refusing the application: section 80(1). (9) The erection of a building must not be commenced until a construction certificate has been issued: section 81A(2). (10)

Mr J J Bingham, who appears for the applicant, submits that the statutory scheme is one which leaves the detail to the certifying authority for the construction certificate. In his submission a comparison of Form 1 (the application for development consent) and Form 11 (the application for a construction certificate) shows that greater detail is required by the latter. He also relies upon an unproclaimed amendment to section 81A(2) in support of his submission . (11) Conclusions 10. In my opinion, the submissions of Mr Tomasetti are to be preferred and are supported by the statutory provisions to which he has referred. I refer, in particular, to the following provisions.

11. A development application must be made in the prescribed form (section 78A(1) and clause 86A(1) of the Regulation) and the development application may only be amended or varied with the agreement of the consent authority (clause 48A(1) of the Regulation).(12) The level of detail required on the plans or drawings when the proposed development involves the erection of building is both specific and detailed, as noted above (footnote 6). Similarly, an application for a construction certificate must be accompanied with plans which require a specific level of detail, as noted above (footnote 7). A construction certificate cannot be issued if the design and construction of the building is inconsistent with the development consent (footnote 8). A development consent can only be granted to the development for which consent is sought (section 80(1)).

12. The reliance by Mr Bingham on an unproclaimed amendment to sub-section 81A(2) is, I think, met by an unproclaimed amendment to section 96, which would add a new sub-section (1A) as follows: (1A) Modification involving a minimal environmental impact 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 proposed modification is of minimal environmental impact, and (b) it is 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 and before that consent as originally granted was modified (if at all) under this section, 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 under section 72 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 any period prescribed by the regulations or provided by the development control plan, as the case may be Subsections (1), (2) and (5) do not apply to such a modification.
13. If it be the purpose of the new sub-section 96(1A) to avoid the need to comply with sub-sections (1), (2), (5) in the case of modifications involving minimal environmental impact, it rather suggests that modifications involving minimal environmental impact at present must be the subject of an application for modification under the section.

Moreover, as was pointed out by Mr Tomasetti in his submissions, if Mr Bingham is correct and minor modification of the kind sought in the present case ought not to be the subject of an application for modification, then a question arises as to who decides what is a minor modification and a further question arises as to who decides what is a minimal environmental impact. I accept Mr Tomassetti's submission that a certifier of a construction certificate is not necessarily a person who is qualified to determine whether a proposal will involve only a minimal environmental impact.

For all of the above-mentioned reasons I am therefore not persuaded that minor modifications should not be the subject of an application under section 96. The consent authority can then determine the application having regard to its duty under sub-section (3) to take into consideration such of the matters for consideration referred to in section 79C (1) as are of relevance to the development the subject to the application ( 13)

It follows that the form of modification sought by the applicant in this case should not be made. The words " generally in accordance with " which the applicant seeks to insert before the identified plans are inappropriate and contrary to the present legislative scheme. Condition 1 of the development consent will be amended to refer to the modified plans which have been tendered in evidence, but will be limited to only those plans.

I turn now to the proviso sought to be inserted by the applicant in the modified Condition 1, noted in paragraph 3 above. For the reasons described above I am of the opinion that a proviso in the terms sought is also inappropriate and contrary to the present legislative scheme. My attention has been drawn, however, to the form of modification granted by Talbot J in The Satellite Group(Ultimo) Pty Limited v Howard Silvers Investments Pty Limited (NSWLEC, 22 December 1998, unreported). In that case Talbot J was prepared to modify a consent by reference to certain identified plans and by adding the words " together with any further wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code ". In view of the unlikelihood that internal minor modifications would have any environmental impact I am prepared to adopt Talbot J's formulation as a qualification of the condition of this case.

The consent in each case will be modified by deleting Condition 1 and by substituting new Condition 1 as follows: 1. This consent relates to the following plans: [identified plans], together with any further wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code. Orders: 19. The orders are as follows: No. 10320 of 1999: Pursuant to the provisions of section 96(2) of the Environmental Planning and Assessment Act 1979, the development consent granted by the Court on 25 October 1999 is modified by deleting condition 1 and inserting the following new condition 1 in its place: 1. This consent relates to the following plans: DA1-01, DA1-02 and DA1-03 Revision C, DA1-04 Revision D, DA1-05, DA1-06, DA1-07, DA1-08, DA1-09 and DA1-10 Revision C, DA1-10A, DA1-10B, DA1-11, DA1-12 and DA1-13 Revision D, DA1-14, DA-15, DA1-16 and DA1-17 Revision C, together with any wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code. No. 10369 of 1999 : Pursuant to the provisions of section 96(2) of the Environmental Planning and Assessment Act 1979, the development consent granted by the Court on 25 October 1999 is modified by deleting condition 1 and inserting the following new condition 1 in its place: 1. This consent relates to the following plans: DA-3-B, DA3-01-B, DA3-02-B,DA3-03-B, DA3-04-B, DA3-05-B, DA3-07-B DATED 15 May 1999 and 23 June 1999, together with any wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code. No. 10370 of 1999: Pursuant to the provisions of section 96(2) of the Environmental Planning and Assessment Act 1979, the development consent granted by the Court on 25 October 1999 is modified by deleting condition 1 and inserting the following new condition 1 in its place: 1. This consent relates to the following plans: DA-2-B, DA2-01-B, DA2-02-B, DA2-03-B, DA2-04-B, DA2-05-B, DA2-06-B, DA2-7-B, DA2-08-B, DA2-09-B, DA2-10-B, DA2-11-B, DA2-12-B, DA2-13-B, DA2-14-B, dated 15 May 1999 and 23 June 1999, together with any wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code. The exhibits, other than Exhibits A and B may be returned.

(1) 96(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, 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 the regulations, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations. (2) 96(1) Minor modifications A consent authority may, on application being made by the applicant or other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation.. (3) Section 4: "development means: ... (c) the erection of a building,..."

(4) 76A(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and instrument.. (5) 78A(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

(6) Note 6: Plans or drawings describing the proposed development must indicate (where relevant): (a) the location of proposed new buildings or works (including extension or additions to existing buildings or works) in relation to the land's boundaries and adjoining development (b) floor plans of proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building (c) elevations and sections showing proposed external finishes and height (d) proposed finished levels of the land in relation to buildings and roads (e) building perspective, where necessary to illustrate the proposed building (f) proposed parking arrangement, entry and exit points for vehicles, and provision for movement of vehicles within the site ( including dimensions where appropriate) (g) proposed landscaping and treatment of the land ( indication plant types and their height and maturity) (h) proposed methods of draining the land. (7) Note 1: The following information must accompany applications for a construction certificate for building and subdivision work. Building Work In the case of an application for a construction certificate for building work: (a) copies of compliance certificates relied upon (b) (4) copies of detailed plans and specifications The plan for the building must be drawn to a suitable scale and consist of general plan and a block plan. The general plan of the building is to: · show a plan of each elevation of the building · show a plan of each elevation of the building · show the levels of the lowest floor and of any yard or unbuilt on area belonging to that floor and the levels of the adjacent ground · indicate the height, design, construction and provision for fire safety and fire resistance (if any) Where the proposed building work involves any alteration or addition to, or rebuilding of, an existing building the general plan is to be coloured or otherwise marked to the satisfaction of the certifying authority to adequately distinguish the proposed alteration, addition or rebuilding.

Where the proposed building work involves a modification to previously approved plans and specifications the general plans must be coloured or otherwise marked to the satisfaction of the certifying authority to adequately distinguish the modification. The specification is: · to describe the construction and materials of which the building is to be built and the method of drainage and water supply. · state whether the materials proposed to be used are new or second hand and give particulars of any second-hand materials to be used. (c) where the application involves an alternative solution to meet the performance requirements of the BCA, the application must also be accompanied by: · details of the performance requirements that the alternative solution is intended to meet, and · details of the assessment methods used to establish compliance with those performance requirements (d) evidence of any accredited component, process or design sought to be relied upon (e) except in the case of an application for, or in respect of, a class 1a or class 10 building: · a list of any fire safety measures that are proposed to be implemented in the building or on the land on which the building is situated, and · if the application related to a proposal to carry out any alteration or rebuilding of, or addition to, an existing building, a separate list of such of those measures are currently implemented in the building or on the land on which the building is situated. The list must describe the extent, capability and basis of design of each of the measures concerned. (8) 79G(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matter: (a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 79B) are not inconsistent with the development consent.... (9) 80(1) General A consent authority is to determine a development application by: (a) granting consent to the application, either unconditionally or subject to conditions, or (b) refusing consent to the application. (10) 81A(2) The erection of a building in accordance with a development consent must not be commenced until: (a) a construction certificate for the building work has been issued by (i) the consent authority, or (ii) an accredited certifier, and (b) the person having the benefit of the development consent: (i) has appointed a principal certifying authority, and (ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and (c) the person having the benefit of the development consent has given at least 2 days' notice to the council of the person's intention to commence the erection of the building. (11) 81A(2) The erection of a building in accordance with a development consent must not be commenced until: (a) detailed plans and specifications of the building have been endorsed with a construction certificate by: (i) the consent authority, or (ii) an accredited certifier, and ... (12) 48A(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.

(13) 96(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..

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.

17. I turn now to the proviso sought to be inserted by the applicant in the modified Condition 1, noted in paragraph 3 above. For the reasons described above I am of the opinion that a proviso in the terms sought is also inappropriate and contrary to the present legislative scheme. My attention has been drawn, however, to the form of modification granted by Talbot J in The Satellite Group(Ultimo) Pty Limited v Howard Silvers Investments Pty Limited (NSWLEC, 22 December 1998, unreported). In that case Talbot J was prepared to modify a consent by reference to certain identified plans and by adding the words "together with any further wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code". In view of the unlikelihood that internal minor modifications would have any environmental impact I am prepared to adopt Talbot J's formulation as a qualification of the condition of this case.

18. The consent in each case will be modified by deleting Condition 1 and by substituting new Condition 1 as follows:

1. This consent relates to the following plans: [identified plans], together with any further wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code.

Pursuant to the provisions of section 96(2) of the Environmental Planning and Assessment Act 1979, the development consent granted by the Court on 25 October 1999 is modified by deleting condition 1 and inserting the following new condition 1 in its place:

1. This consent relates to the following plans: DA1-01, DA1-02 and DA1-03 Revision C, DA1-04 Revision D, DA1-05, DA1-06, DA1-07, DA1-08, DA1-09 and DA1-10 Revision C, DA1-10A, DA1-10B, DA1-11, DA1-12 and DA1-13 Revision D, DA1-14, DA-15, DA1-16 and DA1-17 Revision C, together with any wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code.

Pursuant to the provisions of section 96(2) of the Environmental Planning and Assessment Act 1979, the development consent granted by the Court on 25 October 1999 is modified by deleting condition 1 and inserting the following new condition 1 in its place:

1. This consent relates to the following plans: DA-3-B, DA3-01-B, DA3-02-B,DA3-03-B, DA3-04-B, DA3-05-B, DA3-07-B DATED 15 May 1999 and 23 June 1999, together with any wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code.

Pursuant to the provisions of section 96(2) of the Environmental Planning and Assessment Act 1979, the development consent granted by the Court on 25 October 1999 is modified by deleting condition 1 and inserting the following new condition 1 in its place:

1. This consent relates to the following plans: DA-2-B, DA2-01-B, DA2-02-B, DA2-03-B, DA2-04-B, DA2-05-B, DA2-06-B, DA2-7-B, DA2-08-B, DA2-09-B, DA2-10-B, DA2-11-B, DA2-12-B, DA2-13-B, DA2-14-B, dated 15 May 1999 and 23 June 1999, together with any wholly internal minor modifications as may be necessary for the purpose of compliance with the Building Code of Australia and any Australian Standards incorporated in the code.

The exhibits, other than Exhibits A and B may be returned.

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, 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 the regulations, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations.

A consent authority may, on application being made by the applicant or other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation..

(3) Section 4: "development means: ... (c) the erection of a building,..."

(4) 76A(1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a) such a consent has been obtained and is in force, and

(b) the development is carried out in accordance with the consent and instrument..

(5) 78A(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

(6) Note 6: Plans or drawings describing the proposed development must indicate (where relevant):

(a) the location of proposed new buildings or works (including extension or additions to existing buildings or works) in relation to the land's boundaries and adjoining development

(b) floor plans of proposed buildings showing layout, partitioning, room sizes and intended uses of each part of the building

(c) elevations and sections showing proposed external finishes and height

(d) proposed finished levels of the land in relation to buildings and roads

(e) building perspective, where necessary to illustrate the proposed building

(f) proposed parking arrangement, entry and exit points for vehicles, and provision for movement of vehicles within the site ( including dimensions where appropriate)

(g) proposed landscaping and treatment of the land ( indication plant types and their height and maturity)

(7) Note 1: The following information must accompany applications for a construction certificate for building and subdivision work.

In the case of an application for a construction certificate for building work:

(b) (4) copies of detailed plans and specifications

The plan for the building must be drawn to a suitable scale and consist of general plan and a block plan. The general plan of the building is to:

· show the levels of the lowest floor and of any yard or unbuilt on area belonging to that floor and the levels of the adjacent ground

· indicate the height, design, construction and provision for fire safety and fire resistance (if any)

Where the proposed building work involves any alteration or addition to, or rebuilding of, an existing building the general plan is to be coloured or otherwise marked to the satisfaction of the certifying authority to adequately distinguish the proposed alteration, addition or rebuilding.

Where the proposed building work involves a modification to previously approved plans and specifications the general plans must be coloured or otherwise marked to the satisfaction of the certifying authority to adequately distinguish the modification.

· to describe the construction and materials of which the building is to be built and the method of drainage and water supply.

· state whether the materials proposed to be used are new or second hand and give particulars of any second-hand materials to be used.

(c) where the application involves an alternative solution to meet the performance requirements of the BCA, the application must also be accompanied by:

· details of the performance requirements that the alternative solution is intended to meet, and

· details of the assessment methods used to establish compliance with those performance requirements

(d) evidence of any accredited component, process or design sought to be relied upon

(e) except in the case of an application for, or in respect of, a class 1a or class 10 building:

· a list of any fire safety measures that are proposed to be implemented in the building or on the land on which the building is situated, and

· if the application related to a proposal to carry out any alteration or rebuilding of, or addition to, an existing building, a separate list of such of those measures are currently implemented in the building or on the land on which the building is situated.

The list must describe the extent, capability and basis of design of each of the measures concerned.

(8) 79G(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matter:

(a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 79B) are not inconsistent with the development consent....

A consent authority is to determine a development application by:

(a) granting consent to the application, either unconditionally or subject to conditions, or

(10) 81A(2) The erection of a building in accordance with a development consent must not be commenced until:

(a) a construction certificate for the building work has been issued by

(b) the person having the benefit of the development consent:

(i) has appointed a principal certifying authority, and

(ii) has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and

(c) the person having the benefit of the development consent has given at least 2 days' notice to the council of the person's intention to commence the erection of the building.

(11)81A(2) The erection of a building in accordance with a development consent must not be commenced until:

(a) detailed plans and specifications of the building have been endorsed with a construction certificate by:

(12) 48A(1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined.

(13) 96(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..