COMMISSIONER: The applicant, Ozzy States Pty Ltd ("Ozzy"), has constructed a three level residential flat building at 52-54 Eighth Avenue Campsie, on the corner of Third and Eighth Avenues, pursuant to development consent granted by Canterbury-Bankstown Council ("the Council") on 9 July 2015. Ozzy now seeks to modify that consent by constructing a new fourth floor comprising a single two bedroom unit.
The modification application, in its earlier iterations, was the subject of two determinations by the Council. The first was the refusal of a modification application that sought a new fourth floor comprising two units. The second was the refusal of an application pursuant to s96AB of the Environmental Planning and Assessment Act 1979 ("EPA Act") to review that decision, which application amended the modification application to seek the construction of one four bedroom unit. Ozzy is dissatisfied with that determination and appeals pursuant to s97AA of the EPA Act.
Following the termination of a conciliation conference conducted by me in my former role as the Registrar of the Court, Ozzy sought and obtained leave to amend the modification application to what is now sought.
The two bedroom unit that is sought in the modification application is proposed to present within a mansard roof form as a part fourth storey only. It increases the number of units in the building from 13 to 14, and increases the gross floor area by 85m2. The unit is setback from the lower levels at the north, south and east, with a 10.25m setback from the third floor roof edge at the Eighth Avenue frontage and an 11.5m setback from the roof edge nearest to the boundary adjoining 7-13 Third Avenue. The application would result in an increase in the height of the building to accommodate the unit, the lift and the stairs. The resulting height marginally exceeds the height control. A 3D image of the fourth storey addition is shown below.
The modification application initially also sought approval to change the internal layouts of the units and reconfigure the basement, however these changes were accommodated as part of the construction certificate process and are no longer a component of the present modification application.
The Council opposes the application and raises the following contentions:
The proposal is not substantially the same as that for which development consent was granted,
The proposal will result in excessive height which exceeds the standards and does not meet the objectives for the height of buildings standard,
The proposal will result in a breach of the floor space ratio control for the site,
The proposal will result in built form with excessive bulk and scale, contrary to the future desired character of the area and detracting from the visual amenity of the area,
The building as modified is inconsistent with the Design Quality Principles of the State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development ('SEPP 65'), and
The proposal will create an undesirable precedent and is not in the public interest.
For the reasons articulated below I have determined that the proposal, as modified, is not substantially the same as that for which development consent was granted. As such, there is no power to approve the modification application and therefore no utility in considering the remainder of the contentions raised.
[2]
The role of the Court on appeal
In considering the appeal, the role of the Court is to re-exercise the functions of the consent authority, the Council, in determining the modification application pursuant to s 96(2) of the EPA Act (s 39 of the Land and Environment Court Act 1979). Section 96(2) and (3) provide as follows:
"(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 as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), 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:
(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 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 the period prescribed by the regulations or provided by the development control plan, as the case may be.
(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."
Section 96(2) confers a broad discretion on a consent authority to modify development consent. However, that discretion only arises if (a) to (d) are satisfied. It is in this context that the question of whether the Court is 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, which is put in issue by the Council, arises. There is no issue with respect to (b). With respect to (c) and (d), I deal with the notification and the public submissions below.
Insofar as they are relevant, section 79C(1)(a) of the EPA Act requires consideration of the provisions of any applicable environmental planning instrument, development control plan, planning agreement, and regulations. Amongst other things, s 79C(1) also requires consideration of the likely impacts of the development, the suitability of the site for development, any submissions made, and the public interest.
To assist the Court in its assessment of the application, expert evidence was given by Ms Porter and Mr Black, town planners, who participated in a joint conference and filed a joint report to give their expert opinion on the planning issues.
[3]
The site and its context
The subject site was viewed in the site inspection at the commencement of the hearing. It is a corner allotment with an area of 1011.8m² and is comprised of Lots 1 and 2 in DP 308554. It has a frontage of 21.03m to Eighth Avenue and 50.29m to Third Avenue. The site was previously occupied by two single storey semi-detached dwellings, but is now occupied by the three storey residential flat building approved by the original consent. The construction of the building is complete and an occupation certificate has been issued. The building is orientated so that the greater setback is to Eighth Avenue, but with an entrance and presentation to Third Avenue.
The locality is characterised by residential dwellings and residential flat buildings. A two storey residential flat building is located directly adjacent to the site to the east on Eighth Avenue, and the visual catchment on Eighth Avenue is predominantly single detached dwellings with a number of two and three storey residential flat buildings and town houses. Two locally listed heritage items are located across the road at 61-65 Eighth Avenue. On Third Avenue, development in the visual catchment is similar to Eighth Avenue, with an increased proportion of residential flat buildings. This includes a four storey residential flat building (1970s build) across the road, and a part three-storey, part 4-storey development which is adjacent to the site, of which the fourth storey for each is uncharacteristic of the locality.
[4]
Planning controls
The site is zoned R4 High Density Residential under the Canterbury Local Environmental Plan 2012 ("CLEP 2012") and is within an area with a height control of 11.5m and a FSR control of 0.9:1. The application, if approved, will result in a building that is around 11.88m above the natural ground level and has a floor space ratio of 1.03:1. The zone objectives are:
to provide for the housing needs of the community within a high density residential environment;
to provide a variety of housing types within a high density residential environment; and
to enable other land uses that provide facilities or services to meet the day to day needs of residents.
The Canterbury Development Control Plan 2012 ("CDCP 2012") applies, and requires that where the height limit is 11.5m, a residential flat building is to be a maximum of 3 storeys with a maximum 10m external wall height. The relevant planning controls that apply to the site are contained in Part 2 of the CDCP. The provisions of State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development are also relevant to the issues raised and therefore to the Court's consideration of the application.
[5]
Public submissions and resident objections
The original modification application was notified and exhibited in accordance with Part 7 of the CDCP 2012 and six submissions were received, including one petition. A number of residents also gave evidence at the site inspection. The concerns raised through the submissions and evidence can be summarised as follows:
There will be a further loss of open sky outlook and solar access from the adjacent residential flat building;
The development will exacerbate the damage it has already caused to the adjacent residential flat building;
The development will set an undesirable precedent for future development of the locality;
The increase in the number of dwellings will create additional parking problems;
The development is contrary to residents' expectations of the character of the area;
The proposal is not substantially the same given the increase in floor space ratio and height; and
The proposal results in a development with excessive bulk and scale, that has an adverse impact on the streetscape and is out of character with the area.
These concerns were considered in the hearing. In relation to solar access, the shadow diagrams demonstrate that the only additional shadow created by the proposed fourth storey falls on the wall of the residential flat building adjacent to the site on Third Avenue. The shadow diagrams demonstrate that there is no additional overshadowing, and therefore no additional loss of solar access, caused by the proposed fourth storey to the residential flat building adjacent to the site on Eighth Avenue.
The concern regarding possible damage caused by the construction of the additional fourth storey is one that can be dealt with through dilapidation conditions, which were imposed on the development consent. These conditions, which are conditions 31 and 32 of the development consent, require the applicant to obtain dilapidation reports concerning the two adjoining residential flat buildings at 50 Eighth Avenue and 7-13 Third Avenue prior to obtaining the construction certificate, and that prior to the issue of the occupation certificate an engineer must certify that no damage has resulted to the adjoining properties.
[6]
Is it substantially the same?
As outlined above, s 96(2) requires that a number of matters be satisfied to allow the discretion of the consent authority to be available to modify development consent. In s 96(2)(a), this entails being 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. If I am not so satisfied, then there is no power to modify the consent, regardless of whether or not the application might be worthy of approval on the merits (Woollahra Municipal Council v D'Albora Marinas Pty Ltd (1992) 75 LGRA 46).
In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J found that the word "substantially" in this context means "essentially or materially or having the same essence." In considering this provision in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 ("Moto Projects"), Bignold J observed (emphasis added):
"54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.
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)."
The test is therefore both a qualitative and quantitative one. Pepper J provides a summary of the relevant principles in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [173]:
"The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated as follows:
(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, MichaelStandley 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 Council submits that the proposal is not substantially the same for the following reasons:
A number of the controls that apply to 4-storey residential flat buildings are different to those that apply to 3-storey residential flat buildings, including the required width of the frontage and the rear setback requirements.
The modification application seeks contravention of the building height development standard, which was not considered in the initial assessment of the development application.
The Council's approval of the request to vary the floor space ratio for the original development application (lodged pursuant to cl 4.6 of the CLEP 2012) was based on the development meeting the 3-storey desired character of the area, in accordance with the CDCP 2012.
Ms Porter also gave evidence that as part of the application process, amendments were made to the development application that changed the built form to something that could be approved.
In support of its position, the Council relies on the decision of Moto Projects, in which Bignold J determined that the modification application to remove separate ingress for vehicular traffic resulted in a proposal that was not substantially the same because that separate ingress was "a material and essential physical element of the approved development" (at [59]). In the same way, the Council submits that the 3-storey character of the building was a material and essential element of the approved development. Similarly, the Council relies on the decision of Commissioner Morris in Innerwest 888 Pty Ltd v Canterbury Bankstown Council [2017] NSWLEC 1241, in which the Commissioner determined that the modification application to add an additional storey to the building would result in a development that was not substantially the same. The Commissioner arrived at this conclusion because (at [56]):
"the original consent provided for changes to be made to the building from that proposed in the original development application. Those changes are clearly articulated in condition 9 of the original consent. I consider that those changes, which involved a decrease in the height of the building so that it was a maximum of 5 storeys was an essential element of the council's determination of the application."
Ozzy submits that on a quantitative assessment, the proposed modification will result in a development that is essentially or materially the same as the consent. In undertaking a qualitative assessment, Ozzy submits that it is necessary to recognise the breadth of the power which was summarised by the Court of Criminal Appeal in Moy v Warringah Council 133 LGERA 49, [2004] NSWCCA 77 as being facultative, beneficial and one that is to be construed and applied in a way that is favourable to those who are to benefit from the provision. Ozzy submits that in applying the quantitative assessment test set out in Moto projects, the consideration of "the circumstances in which the development consent was granted" cannot be expanded to include consideration of the circumstances leading up to the grant of consent or aspects of the development application. To do so, Ozzy says, would result in legal error as it would entail a comparison of the development as modified with the development application, rather than with the development consent.
Ozzy also submits that the proposal will not result in a 4-storey development. Ozzy submits that as it will address the street as a predominantly 3-storey building with a partial fourth storey that presents as a mansard roof form, it will remain consistent with the desired future bulk and character of development in the locality. Ms Reid points out that in the consideration of the cl 4.6 request, the assessment did not consider whether further development over a part fourth storey that presents as a roof form would similarly be consistent with the desired future character of the area.
[7]
Other contentions
Ms Porter and Mr Black also gave evidence on the remaining contentions raised by the Council and outlined above, and submissions were made by Ms Reid on behalf of Ozzy in support of the modification application. However, in circumstances where I am not satisfied that the pre-condition to the exercise of the modification power under s 96 has been met, there is little utility in considering the same. The modification application cannot be approved.
The Court orders that:
1. The appeal is dismissed.
2. The application (No DA-523/2014/A) to modify development consent DA-523/2014 by the addition of a new fourth floor comprising a single two bedroom unit is refused.
3. The exhibits are returned, except for exhibit A.
……………………….
Commissioner Gray
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: 08 August 2017
Further, in response to the assertion that the modification would result in a breach of the height control, Ozzy submits that s 96(2) does not preclude such a breach. In support of that submission, Ozzy relies on the decision of Pepper J in SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65, in which Her Honour found that cl 4.6 does not apply to s 96 applications and consideration of the objectives of the controls is not required. Ozzy also relies on the decision of Commissioner Moore (as His Honour then was) in Jaques Avenue Bondi Pty Limited v Waverley Council [No 2] [2004] NSWLEC 101, in which he considered a modification application that breached a height limit where the original consent did not. The Commissioner found that, having regard to the facultative and favourable approach to be taken in determining the application of s 96(2), the proposal was "substantially the same" as that which was approved (at [29]).
Whilst it is clear from the authority that the requisite comparison for the purpose of the assessment is between the consent as modified and the development consent, I am not satisfied that this leads to the conclusion that the development as modified by the present application would be substantially the same as that for which consent was granted.
On a quantitative assessment, the addition of an 85m2 unit does not so change the development in such a quantitative manner as to render it to be something that is not materially the same as what was approved. I also consider that the increase of the height of the building so that it now breaches the height control does not, in and of itself, result in a proposal that is not substantially the same. I accept the submission of the applicant in that regard. The breach of the height control is de minimus and, consistent with the decision in Jaques Avenue Bondi Pty Ltd v Waverley Council, it alone does not change the essential character of the development. However, the addition of a fourth storey to a 3-storey building is an increase in storeys by 33%, which is a significant quantitative change to the proposal.
Further, in undertaking the qualitative assessment, I consider that the reasons for Council's approval of the cl 4.6 request to vary the floor space ratio, taken together with the fact that different frontage and setback controls under the CDCP 2012 apply to 4-storey developments, means that the 3-storey character of the proposal is an essential element of the consent. The original proposal, for a building that exceeded the FSR control, could not be approved without a cl 4.6 request to vary the controls. For the Council to have power to grant consent to the proposal, it had to be satisfied that all of the elements of cl 4.6 were met. One of those elements is that the proposal is consistent with the objectives of the relevant control, that is, the FSR control. The City Development Committee report contains the Council's record of its assessment of the proposal, including its assessment of the cl 4.6 request. In considering whether the proposal is consistent with the objectives of the controls, the report concludes inter alia:
• "Given permitted form of development under Canterbury LEP and DCP 2012, the demand for housing, the increase in house prices in recent times and proximity to Campsie Town Centre, it is anticipated that in the shorter term existing single dwelling houses within the locality with be replaced with 3 storey apartment buildings" (at p.11)
• "[T]he proposal is entirely consistent with the desired future character of the area and impacts created on streetscape character are consistent with the desire future character of the locality, which is for three storey apartment buildings" (at p.11).
I am satisfied, based on this report, that the Council's approval of the request to vary the floor space ratio was based on the development meeting the 3-storey desired future character of the area, in accordance with the CDCP 2012. I am therefore satisfied that the 3-storey element was an essential consideration by the Council to enable them to grant consent.
In this respect, the "essential element" of the approval of the 3-storey development is analogous to the essential element identified in Moto Projects. But for the 3-storey character of the development in the present appeal, it would not have been approved, and therefore a change to this element of the proposal takes it beyond a modified proposal that is "substantially the same".
That Ozzy has designed the fourth storey in such a manner as to have the appearance of a roof form, and with the fourth floor setback to minimise impacts on adjoining neighbours, may address merit issues regarding overshadowing, streetscape and the consistency of the proposal with the desired future character, but does not alter the proposal from its 4-storey character. Further, from its presentation to Third Avenue, I accept the evidence of Ms Porter that it will present as additional bulk above the third storey that will be read as a fourth storey. Given that I have found that its 3-storey character is an essential element of the approval, and that the addition of a fourth storey results in a significant quantitative change to the number of storeys, I cannot be satisfied that the development to which the consent as modified relates, by proposing that fourth storey, is substantially the same development as the development for which consent was originally granted. As such, the pre-condition to the exercise of the modification power under s 96 has not been met, and there is no power for me to approve the modification application.