Pan Pacific Property Group Pty Ltd v Waverley Council

Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 (Amendment No 26) Waverley Council Development Control Plan 2006 (Amendment No 4)

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 CASES CITED: Bechara v Urban Plan Services Pty Ltd (2006) 149 LGERA 41 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Zhang v Canterbury City Council (2001) 115 LGERA 373 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 473

APPLICANT Mr N Eastman, barrister Instructed by Mr G Hartley LEGAL REPRESENTATIVES: Gadens Lawyers RESPONDENT Mr A McKelvey, solicitor Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10243 of 2010 Pan Pacific Property Group Pty Limited v Waverley Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 This is an application under s 96(8) of the Environmental Planning and Assessment Act 1979 (the Act), relying on s 96(2), to modify a development consent granted by the Court for the erection of a four level building with seven units, a shop, and four car spaces at 30A Hastings Parade, Bondi (the site). 2 The site is on the corner of Hastings Parade and Wairoa Avenue, Bondi. The building presently on the site is a single storey building which was formerly a police station. The background to the development application to which consent was granted is described at paragraphs [3] and [4] of my decision in those earlier proceedings: Pan Pacific Property Group Pty Ltd v Waverley Council (No 2) [2010] NSWLEC 104. The configuration of the building approved in those proceedings was described in the following terms: 4. The building comprises five one-bedroom units, one on the ground level, three on the first floor and one on the second floor; and two, two-bedroom units, both split between the second and third floors with a connecting spiral staircase. 3 The application to the Court for modification of the development consent was accompanied by architectural drawings, a design verification statement and a BASIX certificate. In a letter dated 6 April 2010 accompanying the application the applicant described the modification requested in the following terms: The modification proposes to consolidate the third floor level into a single one-bedroom unit. The currently approved units 5 and 7 are to be converted to one bedroom units on the second floor level only by the removal of the small internal spiral staircases that connected these units to the third floor level. A new unit 8, a one bedroom unit, will be created on the third floor level. 4 If the modification application is approved the building would comprise eight one-bedroom units instead of the approved two, two-bedroom units and five one-bedroom units. The building configuration would be a corner shop and a one bedroom unit on the ground floor, three one-bedroom units on each of the first and second floors, and one, one-bedroom unit on the fourth level. 5 It was common ground between the parties that there is no change proposed to the height, floor space ratio or building footprint of the building or landscaping, and that the only physical changes proposed are the removal of two spiral staircases and the addition of a wall on the upper level in proposed new unit 8. It was common ground that the building as approved, and with the proposed modification, would meet the requirement for provision of car parking spaces on site. 6 The issues between the parties as identified in the Council's Statement of Facts and Contentions are first; whether the application meets the requirement of s 96(2)(a) of the Act, namely that the development to which the consent as modified relates is substantially the same as the development for which consent was granted; and if so, whether it should be approved when considered against the controls in Part D2 of the Waverley Council Development Control Plan 2006 (Amendment No 4) (the DCP) relating to apartment mix (part 5.8.3) and roof design and attic levels (part 4.4); and whether the provision of an additional unit on the upper level has the potential to adversely impact on visual and acoustic privacy of adjoining properties. Evidence 7 The modification application was publicly notified by the Council and written objections were received from residents of 22 and 30 Hastings Parade and 63 Wairoa Avenue, and those written objections are part of the evidence before the Court. Those submissions raise concerns about the history of the development of the site, and objections to the height, bulk and scale of the building, car parking, use of the terraces, and the corner shop. 8 Expert planning evidence was given by Mr Anthony Betros on behalf of the applicant and Mr Kerry Nash on behalf of the Council. Consideration 9 Section 96(2) of the Act set outs the requirements that must be met for this modification application to be approved: (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. Subsections (1) and (1A) do not apply to such a modification.

10 The first issue to be considered is whether or not I am satisfied that the development to which the consent as modified relates is substantially the same development as the development to which consent was originally granted. 11 The parties agreed as to the applicable legal principles, which are contained in the decision of Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney (1999) 106 LGERA 298. The approach to considering whether the satisfaction required by s 96(2)(a) can be found to exist is as follows: 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).

57. At the level of physical change, the modified development is obviously different by virtue of the elimination of the ramp access from the Warringah Expressway to the Club carpark, with the direct consequence of employing the Walker Street ROW as the sole means of vehicular access to the redevelopment's on-site carparking provision.

58. Qualitatively appreciated, that difference is in respect of material and essential features of the approved development, that materiality involving the importance attributed to the physical features of the approved development sought to be modified. 12 In the course of his decision Bignold J cited the decision of Stein J in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 where his Honour said that in his opinion, 'substantially' when used in the section means "essentially or materially or having the same essence". His Honour noted that the applicant for modification bears the onus of showing that the modified development is substantially the same. 13 In undertaking the qualitative and quantitative comparison identified by Bignold J in Moto Projects (No 2), the parties agreed that a characterisation of the development in these proceedings as being "mixed used development" or "residential flat building" would be too general. Mr McKelvey for the Council submitted that: "the development for which the consent was originally granted" should be described in the terms used at paragraphs [4] and [52] of the earlier judgment, and that the mix of units and the split between two levels of units 5 and 6 are critically important. Mr Eastman for the applicant submitted that had the approach demonstrated by Mr Betros in his evidence, namely that the number and type of changes to the internal unit configuration do not alter the essence or materially affect the nature of the proposal, is correct, and that the change to the unit mix is not a major issue. 14 Applying the relevant principles to this application, the building retains its general characterisation as a mixed used development, including a shop and a number of residential units. In physical terms, the building envelope, height, floor space ratio, setbacks and landscaping remain the same. The external streetscape presentation is unchanged. The change in mix of units, and the change of configuration between the two upper levels, are not, in my view, changes which could be described as changing a "material and essential" element of the development, to use the language of Bignold J in Moto Projects (No. 2). Even if I were to regard these as a "significant" aspect of the approved development, that would not preclude the proposal still being regarded as being substantially the same development: Bechara v Plan Urban Services Pty Ltd (2006)149 LGERA 41 at [41]. 15 I am satisfied that the development to which the consent as modified relates to the substantially the same development as the development for which consent was originally granted, and s 96(2)(a) is met. 16 Satisfaction of this threshold question, to use the term used by Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475, is the first requirement. Section 96(3) of the Act requires me to take into consideration such of the matters referred to in s79C(1) as are of relevance to the development the subject of the application. 17 The site is zoned Residential 2(c1) under the Waverley Local Environmental Plan 1996 (Amendment No 26) and the proposed development is permissible with consent. The focus of the expert evidence and submissions in these proceedings have related to the provisions of the DCP, which is a relevant consideration under s 79C(1)(a)(iii). The provisions of the DCP, while not determinative, must be considered as a "fundamental element" or "focal point" of the decision making process: Zhang v Canterbury City Council (2001)115 LGERA 373. 18 The DCP itself acknowledges that the departures from its controls can be warranted in the circumstances in the case. Part 1.5 of the DCP provides that compliance with a control does not guarantee that the objective for that control is satisfied. The DCP states: Development controls are not normally varied. However, if an applicant is able to clearly demonstrate that a particular control is unreasonable or unnecessary in the circumstances of the case Council may consider relaxing the control. 19 The relevant provisions of the DCP are first, part 5.8, which relates to apartment mix. The objective set out at part 5.8.1 is to provide a diversity of apartment types which cater for different household requirements now and in the future and to maintain equitable access to new housing by cultural and socio-economic groups. The strategy is set out at part 5.8.2 being to provide a variety of apartments sizes and types in larger multi-unit developments. The controls at part 5.8.3 are: Developments with six or more apartments must provide the following mix of apartment sizes: (a) studio or one bedroom - 35%; (b) two bedroom - 50%; (c) three bedroom - 15%. 20 The evidence of Mr Betros was that in his opinion the altered unit mix represented by the modification application has minimal, if any, planning or social impact. The proposed mix is for a small development, just two units above the threshold when no unit mix provisions apply. In Mr Betros' opinion a development with eight one bedroom units is not consistent with a categorisation of "larger multi-unit" development. In Mr Betros' opinion the proposed mix is appropriate for the site as it maximises affordability. The units are also more accessible through the deletion of the spiral stairs, which would hinder access to a significant proportion of the community, including the elderly, children or the disabled. The altered unit mix would also remove the potential for acoustic conflict between living and bedroom areas being separated as it removes the living area of unit 6 from its position adjacent to the bedroom of unit 7. 21 Mr Nash was of the opinion that the planning outcome sought to be achieved by the control at part 5.8 is to enable a variety of dwelling sizes and accommodation type to respond to different demographic needs and to enable small families, couples and older persons to occupy two bedroom units. In his opinion the Court approved development provides such an accommodation opportunity. The proposal under s 96 does not do so, as one bedroom dwellings generally preclude the opportunity to accommodate young couples with one or two children and older persons, who may want to have the opportunity for grandchildren to visit and stay. In his opinion a move to all one bedroom units in the proposed development would be an undesirable social and planning outcome. The stated advantage of accessibility is not an issue because of the provision of lift access to each level. Mr Nash accepted in his oral evidence that in the absence of a specific reference in the DCP to the number 6 as constituting a large multi-unit development, he would probably have regarded a higher number of units, in the order of 20, as being large. 22 Reading the DCP on its face, the provisions of part 5.8 apply, as the development to which consent has been granted and as proposed has six or more apartments. I accept that the development consent granted in the previous proceedings does not meet the numeral controls at part 5.8.3. However, I note that the apartment mix (being 71% one bedroom, 29% two bedroom) was not in contention in the earlier proceedings, and was consistent with the earlier development consent granted in 2008. The predominance of one bedroom units in the earlier consent was relevant in the earlier proceedings in the context of meeting the Council's Affordable Housing Policy, discussed at paragraphs [61]-[70] of the earlier decision. 23 The evidence before me is that in addition to the variation in the consent granted in the earlier proceedings for this site, there has been another variation from the control in a consent granted by the Council to a three storey six unit development at Old South Head Road, North Bondi. Mr Eastman for the applicant took me to the discussion by McClellan CJ in Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 473 where his Honour set out the principles that are relevant to consideration of development control plans, in particular that where a development control plan has been consistently applied by a Council it will be given significantly greater weight than one that has been only selectively applied. 24 I accept that the numerical controls at part 5.8.3 are not strictly satisfied in the development consent. The expert evidence before me in these proceedings is that it would be difficult to achieve strict compliance with that control in a development of this size. The critical factor in these proceedings, in my view, is that here the proposal is to have eight units all of one bedroom. That would not provide any mix of apartment types, and would, in my view, not meet the objective of part 5.8.1 of providing a diversity of apartment types to cater for different household requirements now and in the future. 25 In considering the other provisions of the DCP the next issue to consider is the proposed reconfiguration on the upper level of the development to provide one, one-bedroom unit rather than to provide the upper level of two separated units as currently approved. The relevant part of the DCP is part 4.4 Roof Design and Attic Levels. The objectives at part 4.4.1 are to minimise the impact of attic levels and plant service areas when viewed from the street, to allow a variety of roof forms in response to the context, and to maximise the environmental performance of attic rooms. The strategy is set out in 4.4.2, and is to provide specific controls to respond to the varied scale and character of each site. 26 For the Residential 2(c1) zone the specific controls are set out at p32 of the DCP, and the relevant control in these proceedings is paragraph (e) which specifies that part additional floors must not contain independent dwellings and must be connected to a unit on the level below. 27 Mr Betros was of the opinion that the proposal achieves the objectives of part 4.4 as there are no altered streetscape or amenity impacts arising out of the conversion of the upper level unit from a two level unit to a single level unit and, furthermore, there is no change to the approved orientation, size or location of the living areas, both internal and external. Mr Betros referred to the approval given in the earlier proceedings to the use of the upper level for a living area. Mr Betros acknowledged in his oral evidence that he was not aware of any development in the local government area that has a separate unit on the fourth level. 28 Mr Nash's evidence was that part 4.4.3(e) is a fundamental element or component of the height control of part 3.3 of the DCP, in that it recognises that an apartment at the upper level of a multi-unit development has the opportunity to use roof space for additional habitable space whereas in the case of flat roof development it provides a better urban design outcome for the roof form and screening of plant rooms and the like. In Mr Nash's opinion the control achieves better articulation of the building in urban design terms. 29 I accept that the inclusion of the living space for unit 7 on the upper level of the building is not consistent with the controls of part 5.2.3 of the DCP, an outcome accepted for the reasons set out at paragraphs [73] to [75] in the earlier proceedings. However, the Council's contentions in these proceedings are framed in terms of the controls at part 4.4, which was not at issue in those earlier proceedings. The objectives of part 4.4 include the minimising of the impact of attic levels and the provision of a variety of roof forms in response to the context. 30 It was common ground between the experts, and consistent with the site view in the earlier proceedings, that the locality is diverse, and there is a range of newer and older residential flat buildings, and single dwellings, in the locality. The effect of the configuration proposed in this application is to provide for an independent dwelling on the upper level of the building. I accept the expert evidence that the removal of the staircase and the reconfiguration would not impact on solar access, light or ventilation, nor would it have an adverse impact on the neighbours. However, considering the controls in the context of the objectives of part 4.4.1, I am not persuaded that the departure represented by this proposed reconfiguration achieves the objective of minimising the impact of the attic level. Here it would constitute the creation of an independent fourth floor rather than having an upper part floor connected to a unit contained within the allowable height control. 31 Section 79C(1)(b) of the Act requires consideration of the social and economic impacts of the proposed development in the locality. The evidence on social and economic impact was in part directed both at s79C(1)(b) and also to whether or not departure from the controls in the DCP ought to be accepted. I accept the evidence of Mr Nash that the provision of both one and two bedroom units in this building would achieve a better mix and diversity of household types than a development containing only one bedroom units, and I am therefore satisfied that it would achieve a better social outcome than the proposal currently before the Court. 32 The views of neighbouring residents are before the Court as required by s96(2)(d) of the Act. The written submissions in part raise issues that either have been considered and determined in the earlier proceedings, or which are not relevant to the issues that have to be determined in these proceedings. There was some concern expressed about the proposal to reconfigure the building to eight one bedroom units, in the context of more general concerns about the overall bulk and scale of the building. Conclusion 33 Having regard to the relevant s79C considerations, I am not satisfied that the departures from the controls in the DCP to the extent proposed in this application are warranted. Part 1.5 of the DCP puts the test in terms of whether an applicant has been able to demonstrate that a particular control is unreasonable or is unnecessary in the circumstances of the case. This application for modification of the earlier consent has to be considered on its merits and on the evidence now before me. On that evidence, I am not persuaded that the reconfiguration to a building with no mix of apartment types in the form of the number of bedrooms, and with the separation into an independent unit on the fourth part floor area, is justified in the circumstances of this case. 34 Accordingly, the Orders of the Court are: 1. The appeal is dismissed. 2. The application to modify the development consent granted by the Court on 19 March 2010 for DA113/2009 for 30A Hastings Parade, Bondi is refused. 3. The exhibits are returned except for Exhibits B and C.

      Linda Pearson
      Commissioner of the Court
      DJ

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