COMMISSIONER: This is an Class 1 - Development Appeal pursuant to s 4.56 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an application to the Court to modify a development consent DA/925/2016 granted by the Court on 4 December 2017 for the demolition of an existing aged care facility and construction of a 70 room, part three (3) storey and part four (4) storey aged care facility. The approved facility would accommodate 90 residents and basement car parking for 39 vehicles at 128A Alfred Street and 40-46 Alice Street, Harris Park being Lots 2 in DP 209226 and 212 in DP 1117339.
Leave was granted on 23 July 2020 to the Applicant to rely on amended plans. The proposed modifications are reflected in the modification plans, by Design Corp Architects, Issue Z, dated 3 June 2020 and seeks consent for the following:
1. The addition of a storey on both the three and four storey component of the approved development. The resulting height will be a part four and part five storey building, representing an increase from 15.5 metres to 18.5 metres. The amended plans show that the build form on the south-eastern side on the 3rd floor (4th storey) has been setback 4 metres from the perimeter of the building below whilst the built form on the south-western side of the 4th floor (5th storey) has also been setback 4 metres from the perimeter of the building below. The north-eastern side of the 3rd floor (4th storey) has also been setback 2.75 metres from the perimeter of the building below.
2. An increased in floor spaces ratio to 0.691:1 (from 0.622:1) and compliant with the 0.8:1 FSR standard applicable in the R4 High Density zone.
3. The deletion of an aged care room on level 3 (Room 83), and its replacement with a communal area.
4. The reduction in size of a communal open space balcony area on the approved third floor, and its replacement with aged care rooms.
5. The addition of a communal open space area on the fourth floor, containing seating BBQ facilities and landscaping.
6. Reducing the total number of beds to 85 (from 90); comprised of 61 single rooms and 12 double rooms.
A Joint Expert Report prepared by Mr Anthony Betros, Planner for the Applicant and Mr Stuart McDonald, Planner for the Respondent (Expert Planners) was filed 7 October 2020 (Exhibit 4) and is relied on by the Parties. The Expert Planners succinctly state the status of these proceedings at pars [10], [20] and [22] as follows:
"10. Since the preparation of the Contentions (based on the architectural drawings filed with the Class 1 application), the proposal has been the subject of amendments following without prejudice discussions and a Section 34 conference. Through this process the building design and external impact contentions have been satisfactorily addressed.
[…]
20. We agree that amended proposal is acceptable in the context of the site and an approval, based on our opinions expressed in relation to Contention 2-6 […] would not be contrary to the public interest, thereby satisfactorily addressing Contentions 7 and 8.
[…]
22. We agree that all relevant statutory and non-statutory matters […] have been considered and based on the resolution of the […] Contentions, approval would be acceptable."
Having considered the expert evidence, I am satisfied that as all other contentions have been resolved, the remaining issue for determination by the Court in these proceedings is contention 1 set out at [5] below.
[2]
Is the modification application substantially the same development?
The Statement of Facts and Contentions filed by the Respondent on 26 November 2019 (Exhibit 1) includes the following contention which is the sole contention remaining in dispute between the parties:
"Development Not Substantially the Same As the Original Approval Development
1. The proposed modified development is not substantially the same development as that for which the consent was originally granted.
Particulars
(a) The modification application proposes a part additional fourth (4th) storey and new fifth (5th) storey to a previously approved part 3 and part 4 storey building, as well as a new large roof top communal terrace. The development would see the increase in the number of aged care rooms from 70 to 90.
(b) The relevant comparison for the purposes of section 4.56 of the Environmental Planning and Assessment Act involves a qualitative appreciation, as we [well] as quantitative, of the developments being compared in their proper contexts.
(c) Based on both a qualitative and quantitative comparison, the proposed modified development is not substantially the same development."
The Applicant made submissions in relation to the legal principles governing the power of the consent authority, in this case being the Court, to modify a development consent. The Respondent did not make any submissions other than to state that it was a matter for the Court to be satisfied it has the power to modify the development consent as sought by the Applicant. In relation to the legal principles, the Applicant relies on the summary in the decision of Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 where she sets out the applicable legal principles governing the exercise of the power contained in s 96 (2)(a) of the EPA, which is substantially the same as the current s 4.56 and states these as follows at [173]:
"(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])."
The Applicant relies on the Amended Statement of Environmental Effects by ABC Planning dated June 2020 (Exhibit B) which concludes that "it is considered that the proposed modification will result in development that is substantially the same as that approved and will have minimal environmental impacts." There is also a detailed assessment with reasons as to how this conclusion was reached which I have read and carefully considered including, but not limited to the following factors:
1. The nature and essence of the approved development remains the same, being for an aged care facility (with 5 less beds) and therefore the intensity of the modified development would be substantially the same as that approved.
2. The recessed nature of the additions ensure that no view corridors are affected and that there are no adverse visual impacts to the setting of the heritage listed reserve opposite the site to the east.
3. The building footprint is unchanged and landscaping is not reduced.
4. There is only a minor increase in FSR from the approved 0.622:1 to the proposed 0.691;1.
A helpful pictorial comparison from two different viewpoints is included in the Amended Statement of Environmental Effects and also in the Joint Expert Report which I include below as part of my reasons for the conclusion I reach that the amended modification application is substantially the same as the approved development.
[3]
Compliance with the Practice Note
In considering consent orders, the Courts Practice Note - Class 1 Development Appeals, provides at [99] that:
"Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following:
(i) the content of the proposed orders (including the proposed conditions of consent);
(ii) the date of the hearing by the Court to consider making the proposed consent orders; and
(iii) the opportunity for any such person to be heard,
or that, in the circumstances of the case, notification is not necessary."
In response to the Practice Note, the Respondent tendered a Bundle of Documents (Exhibit 2) that included the relevant planning controls, submissions from resident objectors and other relevant documents including the Council officer's report on previous s 4.56 Modification Application to Council and Council's decision on above Modification Application both dated 19 February 2020. I am satisfied that the proposed consent orders was notified in accordance with the Practice Note and I have considered the response received as well as the submissions to the original notification in 2018. There was only one response to the notification of the proposed consent orders which raised concerns regarding the overall design of the development and its proximity to Elizabeth Farm and Humbledon Cottage, both being heritage items in the local area.
The Respondent referred the Court to a letter from the Director of Sydney Living Museums (Elizabeth Farm) dated 21 September 2018 which objected to the "significant increase in height" and submitted that Council is satisfied that Elizabeth Farm is not adversely impacted by the amended modification application referring the Court to the internal Heritage Officer report at folios 322 and 323 of Exhibit 2 which concludes as follows:
"…it is fair to say that the current proposal will have a closely similar degree of impact as the previously approved proposal.
Based on the above I have no objection to this proposal from heritage perspective."
I am satisfied that all submissions have been appropriately considered and addressed by the amended modification application.
For the reasons set out in this judgment I find that it is appropriate and within power to uphold the appeal and to grant consent to modify the development consent DA/925/2016 granted by the Court on 4 December 2017.
[4]
Orders
The Court orders that
1. The appeal is upheld.
2. The application to the Court to modify a development consent DA/923/2016 granted by the Court on 4 December 2017 for the demolition of the existing building and construction of an aged care centre comprising 90 residential care places and basement parking and associated facilities at 128A Alfred Street and 40-46 Alice Street Harris Park being Lots 2 in DP 209226 and 212 in DP 1117339 is approved to be so modified in accordance with the conditions of consent in Annexure A.
[5]
Commissioner of the Court
Annexure A (368667, pdf)
Plans (19059128, pdf)
[6]
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Decision last updated: 01 December 2020