Pan Pacific Property Group Pty Ltd v Waverley Council

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.

At a glance

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Decision date

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Judgment (15 paragraphs)

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Cases Cited (7)