Permissibility
Submissions
25The Council contends that that the applications cannot be approved, on two grounds. The first is that the applications were made under s96(1A) of the Act, and as the works for which approval is sought are not of minimal environmental impact, they cannot be approved under s96(1A) of the Act. The second basis is that the 2005 development consent was for a single storey boatshed; the structure as built and for which approval is sought is a two storey structure, which is not, under the definition in the 2006 LEP, a "boatshed"; and so the modifications to the approved boatshed cannot be approved under the 2006 LEP. The Council submits that s109B of the Act is not relevant as there is no need to save the operation of an existing consent when DA 05/1217 is properly construed.
26The applicant submits that there are two avenues by which the modification applications are permissible. The first avenue is based on construction of the 2005 development consent and the 2006 LEP. The applicant submits that the building as approved in 2005 always comprised two storeys, applying the definition of "storey" under the 2006 LEP. The approved plans show a reinforced concrete slab between the ground floor of the boatshed and the roof. While part of the division between the ground floor and the attic of the boatshed was shown to have internal timber joists, it is not evident from the plans that these timber joists would not have a floor on top of them to permit the entirety of the attic to be utilised for storage. Further the roof as approved was pitched at more than 300mm above the floor of the attic at a pitch of more than 35 degrees.
27The applicant submits that as a form of development ancillary to a dwelling house the boatshed is permissible, both "dwelling house" and "boatshed" being a form of development permissible with consent in the zone 1 - Environmental Housing (Environmentally Sensitive Land) zone under the 2006 LEP. It is immaterial whether or not the development is capable of being characterised as a "boatshed" as defined in the 2006 LEP, because if it is capable of being characterised as a building ancillary to a dwelling house, it is permissible (relying on Friends of Pryor Park Inc v Ryde City Council Bignold J, 25 September 1995). Clause 17 of the 2006 LEP contains restrictions on the carrying out of development on land traversed by a foreshore building line. While cl17(7) limits the forms of ancillary development that may be located below the foreshore building line, subclauses 17(8) and (9) apply in this instance. The changes to the roof, height and fenestration are "alterations", and the addition of the WC and shower is an "addition", which are authorised under cl17(8)(a) and (b) respectively of the 2006 LEP. Boatsheds are included within the definition of "excluded building or work" in cl17(1). The Council granted development consent in 2005 to the structure on the location of the building the subject of the appeal, and approved the construction of a boatshed. The provisions of the 2000 LEP in force at that time permitted "ancillary development", and if modifications to the boatshed result in a building that ceases to be a "boatshed" under the 2006 LEP by reason of it having two storeys, it is nevertheless capable of being approved pursuant to cl17(8)(b). The drafter of cl17(8) could not have had in mind that the only types of buildings that could be altered would be buildings that fitted within the definitions under the 2006 LEP even though they may have been approved under an earlier instrument. If the development cannot be characterised as an alteration or addition to an existing building or work, and cl17(8) does not apply, cl17(9) applies to permit consent being granted to an existing dwelling. If the structure as approved is incapable of being characterised as a "boatshed" under the 2006 LEP, the structure as approved comprised an ancillary building to an existing dwelling house, and that building having been approved in 2005, comprised part of an existing dwelling. Clause 17(9) permits an addition to such a dwelling subject to consideration of the requirements of cl17(9).
28In the alternative, the applicant relies on s109B of the Act, which provides:
109B Saving of effect of existing consents
(1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.
(2) This section:
(a) applies to consents lawfully granted before or after the commencement of this Act, and
(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and
(c) has effect despite anything to the contrary in section 107 or 109.
(3) This section is taken to have commenced on the commencement of this Act.
29The applicant submits that the Council, pursuant to the 2000 LEP, granted consent to a boatshed as a form of ancillary development. The development was the subject of a construction certificate granted on 31 October 2006 and construction having commenced before the commencement of the 2006 LEP, the consent remains in force. Section 109B saves the development consent as granted and in force, and it can be modified, even if that would breach the provisions of the 2006 LEP. Section 96 authorises retrospective approval of development, so that the operation of s96 and s109B together authorises the conversion of the boatshed into a two storey structure notwithstanding that this would not be a "boatshed" under the 2006 LEP.
Consideration
(1) The 2005 development consent
30In considering the permissibility issue, the starting point is the construction of the 2005 development consent. Development application DA 05/217 sought consent for "Development of a boatshed & (pontoon) to be built entirely on Freehold land. Development of a slip/ramp & pontoon below MHWM".
31While the development application referred to a "boatshed", the zoning table in cl33 of the 2000 LEP, which applied at the time the development application was lodged, does not expressly refer to development for the purpose of a boatshed. I agree with the applicant that the erection of the boatshed was a form of "ancillary development" as defined in the 2000 LEP, being used or carried out in conjunction with the primary legal use of the site, which was for a dwelling house. In Pearse v Sharpe [2007] NSWLEC 710 Jagot J considered the provisions for "ancillary development" in the 2000 LEP, and held (at [20]) that ancillary development as referred to in cl33 is not a separate development purpose; the provisions were "an attempt to articulate in the LEP recognition of the principles established in cases such as Foodbarn and O'Donnell ".
32While development ancillary to the use for a dwelling house was permissible with development consent, cl20(3) of the 2000 LEP prohibited the erection of a building or the carrying out of a work below the foreshore building line, unless it was a building or work specified in cl20(4). The only basis on which the erection of the structure, and the carrying out of the other work approved in the development consent, below the foreshore building line could be approved was by application of cl20(4). Development allowed by cl20(4) relevantly included the erection of a boatshed and the carrying out of landscaping and other associated works. I agree with the Council that the development application sought consent for a boatshed and other facilities identified in cl20(4), and that if the proposed structure had not been able to be characterised as a boatshed for the purposes of cl20(4), it would have been prohibited by cl20(3).
33The notice of determination of development consent dated 23 December 2005 stated that the proposed development was:
"Development below the foreshore building line - Construction of Boatshed, Slipway, Stub Jetty, Ramp and Pontoon and minor repairs to existing seawall".
34Condition 1 provided:
The development shall be implemented substantially in accordance with the details and specifications set out on the Drawing No. 03001 S.1 & 2 Amendment D dated 29/8/05 prepared by Aquatic Pontoons and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder.
35The plan specifically identified in condition 1 shows the dimensions of the boatshed to be 7m by 4m. The height to the ridgeline was 5m, being 2.7m from the ground level slab to the slab and joists and a further 2.3m to the ridgeline. The notation for the rear elevation states "hinged window access to roof space". The front elevation shows a "proposed hinged window & side lighting". Extending from the front of the boatshed was a "proposed timber loading platform for watercraft". The landscape plan accompanying the development application, referred to in condition 1, included Site Assessment/Calculations, showing the Gross Floor Area of the boatshed at 28sqm.
36The development application and accompanying plans do not specify the number of storeys of the proposed structure. The planning experts agree that the approved plan shows an upper level structure across the boatshed rather than a mezzanine; however, they disagree as to whether this is a floor to be used for general boatshed purposes and for storing watercraft, or whether it is a ceiling with roof space above capable of being used for storage.
37In considering the approved plan, I agree that it is not clear how far the specified slab extends from rear of the building towards the north. In applying the definition of "storey" in the 2000 LEP to the structure represented in the plans, the critical question is whether the slab/joists above the ground level slab constitutes a "floor". The notations on the approved plans identify the space above the slab/joists as "roof space", to be accessed through windows on the front (via the loading platform for watercraft) and rear elevations. Having regard to the description of that area as "roof space", the restricted means of access to it, and the roof pitch at 37 degrees, pitched close to the roof space floor, I am not persuaded that the approved roof space is a "space between any floor and its ceiling or roof above", but rather it is a space above a ceiling in which it would be possible to store watercraft. On that approach, it is not a "storey" as defined in 2000 LEP.
38The structure as shown on the plans was a structure appropriate for the storage of boats and boating equipment, which was consistent with the description of boatsheds at part 11.1 of the DCP. The dimensions of the structure were also consistent with the controls applicable to boatsheds in the DCP, in particular those relating to length, width, and height. The gross floor area shown on the landscape plan was consistent with the dimensions for a single storey boatshed in part 11.1 of the DCP. The Development Assessment Report dated 13 December 2005 noted in relation to the boatshed:
The proposed boatshed proposes to replace an existing dilapidated boatshed and has been designed with a pitched roof and to minimise excavation. The previous development application (da05/0264) involved the construction of separate retaining structures surrounding the boatshed, to minimise excavation on the foreshore and to protect the visual amenity of the waterway the retaining structures will now be provided via the boatshed walls.
The proposed floor level, size and height of the proposed boatshed comply with Council's requirements. The proposed boatshed is considered to be consistent with the character and appearance of several surrounding boatshed including an adjoining boatshed located to the east of the subject property. The proposed boatshed is to be constructed from appropriate materials, a condition of consent is recommended to ensure that appropriate colours and no-reflective surfaces are used.
39A development consent should be construed liberally: House of Peace Pty Ltd v Bankstown City Council (2000) 106 LGERA 440. I am satisfied that the development consent and the plans approved in condition 1 of that consent establish that what was approved in 2005 was a single storey boatshed of external dimensions, design, and location, consistent with the controls in the relevant planning instruments and policies. It was common ground that the approval of the erection of the structure included approval of the use as a boatshed.
(2) The structure as built
40A modification application under s96 can be approved notwithstanding that the works proposed have been constructed: Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240. During the course of the hearing the parties clarified that the work to the sliprails and the seawall, and the east-west retaining walls, are not included in the modification applications.
41In appeal 10084 of 2010, approval is being sought for the building as constructed including the ground level and ridge heights, and the inclusion of three skylights in the roof. In relation to the height of the building, the modification application 09/0305 stated that the proposed modification was to correct RLs shown on the 2005 development consent plans, so that the seawall should be RL 1.45m (instead of 1.30m), the floor RL shown at 1.7m, and the roof ridge corrected from RL 6.3m to RL 7.1m. The evidence of Mr O'Donnell, Mr Pracy and the survey report of Mr Lucke was directed in part to establishing the actual dimensions of the structure as built. Mr Lucke's survey report states that the ground level slab is at RL 1.38m at the front. The photographs annexed to Mr O'Donnell's Statement confirm that the ground level slap slopes up away from the seawall. On Mr O'Donnell's measurements the mid point of the ground floor slab is at RL 1.7m. Mr Pracy was unable to confirm that measurement, and agreed that the survey report does not include spot levels to confirm it.
42However, it is not necessary to reach a firm conclusion as to the ground floor slab level. The significant measurements for the purposes of characterising the structure and assessing the merits of the applications are those of the structure above the ground level slab. Based on Mr Lucke's report, the overall height of the building, which as surveyed is taken from the outside of the building, is 5.690m (to RL 7.07), being 2.710m from the ground to the upper level, and a further 2.830m from the upper level to the ridge line. Based on Mr Pracy's evidence and Mr Lucke's survey report, the roof is pitched 1.275m above the roof space floor, at an angle of 32 degrees. The approved plans show the roof pitch at approximately 400mm, and the angle at 37 degrees. The evidence from the view confirms Mr Pracy's evidence that the increased volume of the roof space as a consequence of the increase in the external wall and the reduction in roof pitch means that the room height is now adequate to safeguard the occupants from injury or loss of amenity when in use as a habitable room. The applicant accepts that the size of the roof space area is such that it is capable of being used as a habitable room. Access to the space is possible through a glazed door on both the front and rear elevations. Having regard to the access, the volume of the roof space, and the finishing of the ceiling and flooring apparent on the view, I am satisfied that this space is a space between a floor level and the ceiling above, and meets the definition of "storey" in the 2006 LEP.
(3) Whether a two storey boatshed is permissible under the 2006 LEP
43It was common ground that the structure as built, and as proposed to be approved in the modification applications, is a two storey structure and is not therefore a "boatshed" as defined in the 2006 LEP. The issue is whether such a structure is permissible under the 2006 LEP and can be approved in these modification applications. In contrast to the 2000 LEP, the 2006 LEP does not define, or include in the zoning table in cl11, "ancillary development". In the absence of provisions for "ancillary development" in the 2006 LEP, the principles in Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 would apply, so that the building and its use as a boatshed being ancillary to the use as a dwelling house, would be permissible in the zone 1 - Environmental Housing (Environmentally Sensitive Land) zone. The WC and shower could be regarded as ancillary to that development. However, cl17 (7) of the 2006 LEP would prohibit the erection of a building or the carrying out of a work below the foreshore building line, unless cl17(8) or (9) applies.
44The 2006 LEP defines "dwelling" to mean "a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile". While I agree that the use as a boatshed may be ancillary to the use of the dwelling house, the structure is not a dwelling and so in my view cl17(8)(a) does not apply so as to permit alteration to that structure. For the same reason, cl17(9) does not apply so as to permit any "addition" to the structure. The applicant submits that the boatshed is an "excluded building or work" so that cl17(8)(b) applies to permit its alteration or addition. The definition of "excluded building or work" in cl17(10) includes a "boat shed". The Dictionary to the 2006 LEP includes a definition of "boatshed". It was common ground that the difference in spelling does not alter the substance of the provision. In my view the term as used in cl17 must be read in light of the definition in the Dictionary to the LEP, so that only a structure that relevantly is a single storey structure could be a "boatshed" and thus fall within paragraph (a) of an "excluded building or work".
45Contrary to the applicant's submissions, I consider that it would be consistent with the objectives of clauses 17 and 18, which are aimed at regulating and restricting development below the foreshore building line, for the drafter of the 2006 LEP to take a restrictive approach to the extent to which alterations or additions to structures on the foreshore could be permitted. The continuing use of a structure that did not fall within the definition of "boatshed", but which had been approved before the commencement of the 2006 LEP, would be protected as an existing use under s106 of the Act, and s109B would preserve an existing consent to carry out the development.
46For these reasons, I agree with the Council that the modifications to the approved development as carried out convert the structure into a two storey structure and cannot be approved. The 2006 LEP would not permit the approval of a structure that is not a "boatshed" as defined in the 2006 LEP, and would not permit the approval of ancillary works to such a structure.
(4) Whether s109B(2)(b) permits modification
47The applicant relies on the decisions of Biscoe J in Currency Corporation Pty Ltd v Wyong Shire Council (2006) 155 LGERA 230 and Reading Properties Pty Ltd v Auburn Council (2007) 158 LGERA 116, and Lloyd J in Gann v Sutherland Shire Council [2008] NSWLEC 157, for the submission that s109B(2)(b) enables the modification under s96 of a development consent notwithstanding that it would be contrary to the provisions of the planning instrument in force at the date of modification.
48In Currency Corporation Biscoe J held that s109B could apply to a development which has the benefit of existing use rights. In the circumstances of that case, s109B did not apply because the relevant approval (which was the issue of a certificate of approval under the Strata Titles Act 1973) was not a "consent" contemplated by s109B, and the use (as a residential flat building) was not "in accordance with" that approval but was independent of that approval. In Reading Properties Biscoe J held that s109B preserved consents granted in 1997 and 2001 for a development comprising cinemas, shops, restaurants and retail facilities, which were subject to a condition which required that further individual applications be submitted for specific uses within the development. An application could be made for approval of a particular kind of shop, notwithstanding that shops were by then prohibited. At paragraph [33] Biscoe J held that the reference in s109B(2)(b) to "modification" is a reference to a modification pursuant to s96 of the Act; however, his Honour held that the application then before the court was not such an application, but simply an application pursuant to the earlier development consent.
49While confirming that an application can be made under s96 to modify a consent preserved by s109B, I am not persuaded that these decisions provide support for the applicant's broader submission. At paragraph [34] in Currency Corporation Biscoe J distinguished between the continuation of a use (here, the use as a boatshed), and carrying out a development, and held (at [35]) that the words "carrying out a development" in s109B "refer to an activity, permitted by a consent in force, which has not yet occurred". The activity permitted by the 2005 development consent was the erection of the boatshed in accordance with the plans approved in condition 1, namely as a single storey structure with a maximum height of 5m; that activity is not prohibited under the 2006 LEP, and so s109B(1) does not apply.
50The decision of Lloyd J in Gann does not, in my view, provide support for the submission that s109B(2)(b) would permit a modification of the 2005 development consent to enable the erection of a structure that would now be prohibited under the 2006 LEP. In Gann Lloyd J determined a question of law concerning the power to modify a development consent where the modification would result in non-compliance with three development standards in the applicable planning controls, relating to height, gross floor area, and landscaped area. Lloyd J applied the decision of the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433, which confirmed (at [14]) that an application for modification could be approved for a development in breach of an applicable development standard and that an objection under State Environmental Planning Policy No 1 - Development Standards was not available as a means of achieving modification in such circumstances. Lloyd J held:
8 In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, 97 LGERA 433, the Court of Appeal considered the relationship between the then s 76 and the then s 102 of the Act. Section 76 was relevantly the same as the present s 76A, and s 102 was relevantly the same as the present s 96. The Court of Appeal held as follows (at 481):
Section 102 [now s 96] is a free-standing provision. A modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application. And s 102(3A) [now s 96(3)] controls the way in which the consent authority takes into account the development standards found in any environmental planning instrument.
9 The fact that s 96 is a free-standing provision means that the restriction under s 76A which requires development to be carried out in accordance with the development consent and an environmental planning instrument, does not apply to an application under that section. This conclusion is reinforced by s 96(4), which states that the modification of a development consent in accordance with this section is taken not to be the granting of development consent, but a reference to a development consent includes a reference to the development consent as so modified. This provides a complete answer to the first three submissions advanced by Dr Berveling. Section 96(3) requires the consent authority to take the provisions of any relevant environmental planning instrument into consideration.
51Both Gann and Michael Standley concerned the application of a development standard which came into effect after the grant of development consent, and not a prohibition such as that constituted by cl17(7) of the 2006 LEP. In Agostino v Penrith City Council [2010] NSWCA 20 the Court of Appeal confirmed (at [49]) that while the process of deciding whether a particular provision is a development standard or a prohibition can be difficult, a development in respect of which it is asserted that a provision is a development standard is one that may be carried out, that is, permissible. The two storey structure that has been erected on the site is not a "boatshed" as defined in the 2006 LEP, and does not fall within the exceptions in cl17(8) or (9) to the prohibition in cl17(7). Neither the structure, nor the ancillary WC and shower, are permissible under the 2006 LEP, and I am not persuaded that there is power under s96 to approve them.
Conclusion on permissibility
52I am not satisfied that there is power to approve either of the modification applications, even assuming that the Council's contention that s96(1A) does not apply is correct and that the applicant can rely on s96(2) of the Act. However, if I am wrong in my interpretation of the 2005 consent and the provisions of the 2006 LEP, or if s109B(2)(b) would enable the modification of the 2005 consent to permit a structure and ancillary works that would otherwise be prohibited, s96(3) of the Act requires that I 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.