Parker Logan Property Pty Ltd v Council of the City of Sydney

Land and Environment Court (NSW)|2016-08-04|Before: Ms J

Solicitors: Mr A Boskovitz, Associates (Applicant)

Ms J Mort, Council of the City of Sydney (Respondent) File Number(s): 2016/160227

Judgment

Parker Logan Property Pty Ltd (applicant) is appealing under s 97(1) of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Council of the City of Sydney (council) of an application under s 96(AA) of the EPA Act (Application) to modify the development consent (DA2015/544) for a residential flat building at 12 Marsden Street and 15-21 Brodrick Street, Camperdown (site).
The key contentions in dispute are whether the modified development is substantially the same as originally approved and whether the increased floor space ratio (FSR), above the development standard, is inconsistent with the objectives of the standard and reduces the amenity of the development.

Site and locality

The site has frontages to both Marsden and Brodrick Streets with a site area of 1153.8sqm. It is developed with a 1-2 storey warehouse building which occupies the whole site. The surrounding area is characterised by warehouses and recent residential flat buildings.

Statutory framework

S96AA of the EPA Act relevantly provides: 96AA Modification by consent authorities of consents granted by the Court (1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development 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 the consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has notified the application in accordance with: (i) the regulations, if the regulations so require, and (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 (c) it has notified, or made reasonable attempts to notify, each person who made a submission in respect of the relevant development application of the proposed modification by sending written notice to the last address known to the consent authority of the objector or other person, and (d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be. (1A) 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. ….. (1C) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. …..
Section 79C of the EPA Act provides: 79C Evaluation (1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and ….. (iii) any development control plan, and
The site is with the B4 - Mixed use Zone under Sydney Local Environmental Plan 2012 (LEP) and the development is permissible with consent.
Clause 4.3 and the Height of Buildings Map permits a maximum height of 12m and cl 4.4 and the FSR Map of the LEP permits a maximum FSR of 1.5:1 (1730.7sqm). The Application exceeds both these standards. Clause 4.6 of the LEP permits exemptions to development standards in the granting of development consent. Under s 96AA(1C) a modification application is not the granting of development consent and consequently cl 4.6 does not apply.
Sydney Development Control Plan 2012 (DCP) includes objectives and provisions that are relevant to the contentions for height in storeys (4.2.1.1), ventilation (4.2.3.9), and Flexible housing and dwelling mix (4.2.3.12).
State Environmental Planning Policy No 65 - Design Quality of Residential Apartment Development (SEPP) applies to the development. Clause 30(2) provides: 30 Standards that cannot be used as grounds to refuse development consent or modification of development consent …… (2) Development consent must not be granted if, in the opinion of the consent authority, the development or modification does not demonstrate that adequate regard has been given to: (a) the design quality principles, and (b) the objectives specified in the Apartment Design Guide for the relevant design criteria. …..
The wording of cl 30(2) is unclear as it refers to the granting of "development consent" for a "modification". However, the parties did not raise an issue with the application of SEPP 65 to the modification or that the ADG is not a relevant consideration. The provisions in the AGD of relevance to the contentions include Building separation (2F), Natural ventilation (4B), Light and ventilation to internal circulation corridors (4F) and Apartment mix (4K).

Background and proposal

The original development application was lodged on 27 April 2015 (DA). In the plans lodged with the DA (Exhibit D), the proposal comprised two residential flat buildings separated by a 12m internal courtyard with 36 units. Building A fronted Brodrick Street and proposed four units over four full floors and Building B fronted Marsden Street with five units over four full floors. The proposal maximum height was 13.5m (based on the cl 4.6 Written Request) and RL36.90 (based on the plans) and the maximum FSR was 1.65:1.
The DA was accompanied by two written requests under cl 4.6 of Sydney Local Environmental Plan 2012 (LEP) to vary the height of buildings standard in cl 4.3 (Exhibit F) and the FSR standard in cl 4.4 (Exhibit E).
On 9 June 2015, the applicant filed a Class 1 appeal against the deemed refusal of the DA. A conciliation conference under s 34 of the Land and Environment Court Act 1979 was held on 2 September 2015, agreement was reached and the following orders were made on 11 December 2015 (Development Consent): Leave is granted to the Applicant to rely on the amended plans set out in condition 1 of Annexure A. The appeal is upheld. Development consent is granted to development application No. D/2015/544 for the demolition of existing improvements at 12 Marsden Street and 15-21 Brodrick Street, Camperdown (comprising Lot 171 DP 131298, Lot 1 DP 131402, Lot 1 DP 71697, Lot 1 DP 172170, and Lots 53 and 54 DP 939747) and the construction of two 4-storey residential flat buildings, containing a total of 24 dwellings, over a basement car parking level, and the strata subdivision of the development subject to the conditions of consent in Annexure A.
In the plans approved under the Development Consent (Exhibit 2, Tab 12) Buildings A and B have three units on each floor (24 units) and the upper level is setback from each street frontage with a maximum height shown as RL37.30 in the plans and 14.2m (based on the experts' Joint Report), which exceeds the maximum height limit in cl 4.3 of the LEP. The south facing balconies on each level of Units 02 and 03 in Building A and the north facing balcony of Units 02 in Building B are separated by a 14 m internal courtyard. The balconies of Units 01 in Building B are setback a further 1.96m and there is a significant "indent" on each floor of Building B between Units 01 and 02. The FSR approved in the Development Consent is in dispute between the parties. Council's position is that it is 1.49:1 (1721.58sqm), which would be below the FSR standard in cl 4.4, whereas the applicant's position is that it is 1.504:1 (1735.6sqm) which would exceed the FSR standard by 5sqm. Amended clause 4.6 requests were not submitted to vary either the height or FSR standards.
The Application was lodged on 29 February 2016. The applicant lodged a class 1 appeal against council's deemed refusal of the Application on 13 April 2016 and council refused the Application on 14 April 2016.
The Application seeks to modify the Development Consent by infilling the "indent" on each level in Building B to provide an additional studio unit on ground level (Unit B0.02) and one bedroom units on levels 2-4 (Units B1.02, B2.02 and B3.02). The total number of units in the development would increase to 28 units. These new units and the adjoining units (03) are extended 1.96m to the north, thereby reducing the separation between Building A to 12m. The additional gross floor area (GFA) would result in an FSR of 1.69:1 (1947.47sqm) based on council's figures and 1.70:1 (1960.2sqm) based on the applicant's figures. Although the plans accompanying the Application state that the GFA is1986.7sqm with a FSR of 1.72:1. It is unclear why there is a difference between these figures as well as the figures for the Development Consent as the areas included and excluded in the GFA plans appear to be the same. The modification would also increase the extent of building which does not comply with the height standard in cl 4.3, although the maximum height would remain the same.

The evidence

The Court visited the site and heard evidence from Mr J Mead, for the applicant and Mr J Groundwater, for the council. The applicant did not agree under s 34(12) of the LEC Act that the evidence or documents from the conciliation conference held for the DA could be admissible in the current proceeding before the Court. The applicant agreed to the admission of revisions to the DA which were provided to council prior to the s 34 conference (Exhibit 5). The revised plans are the same as the plans which accompany the Application. During the hearing, the experts agreed that if the highlight windows above Unit B3.04 were operable this unit would achieve acceptable cross ventilation and that a condition should be imposed to this effect. On this basis the proposal would comply with the numerical requirements of Part 4B of the ADG that at least 60% of the units be naturally ventilated.

Whether the Application is substantially the same as the Development Consent

The experts generally agreed that quantitatively the development proposed in the Application was substantially the same development as that approved in the Development Consent. They also agreed that in qualitative terms, the Application would have the same appearance and contribution to character when viewed from the public domain. The main disagreement as to whether the Application is substantially the same relates to the qualitative assessment, including the circumstances in which the development consent was granted.
Mr Mead considered that the FSR of the DA and its compliance or non-compliance with the standard were not of "material importance" in the granting of the Development Consent. Rather it was the range of matters that establish the building envelop and its impacts that determined the acceptability of the Development Consent. While there would be changes to the unit mix, a reduction in the number of units with natural cross ventilation and the separation distance between the buildings, the proposal would still comply with the requirements in the AGD and consequently provide acceptable amenity. Furthermore, the proposal would provide a "better outcome" as it would increase the number of units in an area, which is in close proximity to transport a major hospital and university. Mr Mead therefore considered that the proposal would be substantially the same development both qualitatively and quantitatively.
Mr Groundwater considered that the proposed changes "contradict the circumstances in which the consent was granted" as it was supported on the basis that it achieved a "better outcome". The variation to the height control was permitted in the context of surrounding development as it redistributed the permissible FSR into a building envelope that provided better amenity than the minimum requirements in the ADG and the DCP through greater separation between buildings, more units with natural cross ventilation and natural light and ventilation into the into the circulation corridors of Building B. The modified development would no longer achieve this "better outcome" which was the basis on which the development consent was granted and it is therefore not materially or essentially the same development. Furthermore, he considered that the development consent complied with the maximum FSR whereas the Application does not, and there has been no consideration of the "tests" in cl 4.6 as it does not apply to the modification.

Submissions

Mr Pickles SC, for the applicant, and Mr Hemmings SC, for the council generally agreed on the proper approach to the question of whether the Application is substantially the same. Mr Pickles summarised the approach in his written submissions as follows: Relevantly, s 96 has been described as "beneficial and facultative": Houlton v Woollahra MC (1997) 95 LGERA 201 at 203; North Sydney Council v Michael Standley & Associates Pty Limited (1998) 97 LGERA 433 at 440. Accordingly, the provisions of s 96 should not be artificially constrained by applying a gloss on the statute which does not exist. In Vacik Pty Limited v Penrith City Council [1992] NSWLEC 8, Stein J held that "substantially" meant "essentially or materially or having the same essence". In Moto Projects No. 2 Pty Limited v North Sydney Council (1999) 106 LGERA 298 Bignold J held at [56] that the task of determining whether a development as proposed to be modified is substantially the same as the consent originally granted was as follows: "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 context (including the circumstances in which the development consent was granted)." Whether a development is substantially the same as that which was originally approved is a question of fact and degree depending on the specific circumstances of each matter and is not a question which is capable of scientific or mathematical precision, but rather is a judgment based on an overall qualitative and quantitative assessment.
The difference in the parties submissions centred on the interpretation of Bignold J finding that "the comparison involves an appreciation, qualitative, as well as quantitative of the developments being compared in their proper context (including the circumstances in which the development consent was granted). Mr Hemmings submits that "the circumstances in which the consent was granted" would include a consideration of the variation to the height control being accepted on the basis that a "better environmental planning outcome" would be achieved through increased amenity to the occupants of the building, which are reflected in the changes between the DA and the Development Consent. The Application now seeks to reinstate GFA that was deleted in the approval of the DA through the assessment of the application and the agreement in under s 34, which would reduce the amenity of the development.
Mr Pickles submits that the test is not whether an aspect of the development such as FSR was "of material importance" to the decision maker in the approval of the application. The real question is whether "objectively" the modification makes the overall development "essentially" or "materially" different and not "having the same essence". The Application does not alter the fundamental essence of the development. It will still be for the "construction of two four storey residential flat buildings" but with 28 units rather than 24. The number of units is not a fundamental or essential element of the consent such that alteration of that number would result in a substantially different development. Furthermore, the changes are "modest" and while the amenity of the development will be reduced it is still acceptable.
Mr Pickles and Mr Hemmings also agreed that s 96 is a "stand alone power" which establishes its own regime for the modification of a development consent. Importantly, they agree that the FSR development standard in the LEP is a relevant consideration. Mr Hemmings noted that the wording in of the FSR standard in cl 4.4(2) of the LEP (and the Standard Instrument (Local Environmental Plans) Order 2006) is different to earlier instruments, which generally referred to "consent not being granted". Whereas cl 4.4(2) provides that the "maximum floor space ratio for a building…must not exceed." Arguably, given that cl 4.6 does not apply there would be no power to approve a modification application, which exceeds the FSR Standard. However, Mr Hemmings and Mr Pickles agree that cl 4.4 is relevant and a mandatory consideration but that it is not a prohibition to approval rather a question of weight. In Mr Hemmings' submission, considerable weight should be given to the FSR control, noting that the Development Consent complied with the control whereas the Application does not and that this is a relevant factor in the consideration of whether the Application is substantially the same. He submits that while s 96 is "beneficial and facultative" it is only available if the Application is substantially the same, otherwise it is open to the applicant to submit a new development application under which the requirements of cl 4.6 would be considered.

Findings

Mr Pickles and Mr Hemmings referred to the relevant decisions of the Court and generally agreed on the approach to determining what is "substantially the same" for the purpose of s 96AA(1)(a) of the EPA Act. Section 96AA(1)(a) requires that I be satisfied that the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted. The finding of satisfaction in s 96AA(1)(a) is a jurisdictional fact which must be satisfied before an application for modification under s96 can be considered on its merits.
Consideration of whether the development is substantially the same requires both qualitative and quantitative comparison (see Moto Projects). The extent to which this comparison involves a consideration of the "circumstances in which the development was granted" was in dispute between the parties. Even if the "circumstances" are relevant, in this case the consent was granted on the basis of a s34 agreement and there is no documentation or evidence before the Court, other than plans prior to the s34 conciliation conference and the plans approved under the Development Consent, which can demonstrate the "circumstances" given that there is no written assessment of the DA under s 79C of the EPA Act. It is even unclear whether the FSR standard as well as the height standard was varied. Written requests under cl 4.6 to height and FSR were submitted for the DA but were not amended to reflect the changes that were approved, including the increase in maximum height.
Nevertheless, an understanding of the development for which consent was granted and a comparison with the development proposed in the Application is necessary in order to undertake the quantitative and qualitative comparison required to satisfy s96AA(1)(a).
A summary of the quantitative changes is set out below: Development Consent Application Change Number % Number % Number % 1.49:1 (c) 1.69:1 (c) 0.2:1 FSR 1.504:1 (a) 1.70:1 (a) 0.196:1 GFA 1721.58sqm (c) 1947.47sqm (c) 225.89sm 1735.6sqm (a) 1960.2sqm (a) 224.6sqm RL37.30 RL37.30 Max Height 14.2m 14.2m over a greater area of Building B Studio 1 4% 2 7% +1 +100% 1 Bedroom 11 46% 14 50% +3 +27% 2 Bedroom 8 33% 8 29% 0 -5% 3 bedroom 4 17% 4 14% 0 -2% Total 24 28 +4 +17% Ventilation 21 87.5% 17 60.7% -4 -26% Building separation 14m min 12m min -2m -14m

The experts have agreed that the quantitative changes are of themselves not significant but they disagree on whether they would result in a qualitative change to the development. In undertaking the qualitative comparison required, I find that the Application is substantially (and in essence different) from the Development Consent. The increase in GFA and its distribution in Building B will result in a significant change to the amenity for the future occupants of the development. In a particular, the infilling of the "indent" to provide an additional unit on each level in Building B will reduce natural cross ventilation to some units and will reduce the natural light and ventilation to the circulation areas. The reduction in the separation distance between the buildings will also reduce the amenity enjoyed by the future occupants in each building as their balconies and habitable rooms will be closer to each other.
Furthermore the amenity of the courtyard will be reduced as it will be a smaller space bounded by buildings with a wall height greater than 12m. Although not mentioned by the experts, the shadow diagrams in the Joint Report indicate that the proposed courtyard would be in shadow for most of the day in midwinter, however, the larger courtyard in the Development Consent, in particular, the "indent" area, would have received greater solar access due to Building B being further to the south of Building A. The additional windows to the side walls of the units adjoining the "indent" would probably also have provided greater solar access to these units.
These changes result in appreciable reduction in amenity. The amenity of the units will still be acceptable as it complies with minimum requirements of the ADG, however, it will not be of the high standard approved in the Development Consent. The distribution of floor space approved in the Development Consent has enabled the high standard of amenity to be achieved, which is an essential and material aspect of the development that will be removed by the modifications.
Regardless of whether or not the Development Consent technically complied with the FSR control, any exceedance was immaterial. (5sqm). Whereas the modifications, will have a material impact on the amenity of the development and would not meet objective (d) of the standard given that the proposed development is part of the locality.
Furthermore, the Development Consent approves two four storey buildings, which exceed the storey control of three storeys in the DCP and the height limit in the LEP. The balconies of the upper floors are setback about one metre from the street frontage but the buildings will read as four storeys. While this may be acceptable within the context of surrounding development an increase in floor space beyond that anticipated in the FSR standard is not warranted given the material reduction in amenity.
I do not accept Mr Mead's evidence that the provision of additional units would achieve a better outcome that would warrant the increase in FSR and the further variation to the unit mix control in Part 4K of the DCP. The proximity of the area to transport, the hospital and university would already be taken into account in establishing the height and FSR for the site and the unit mix, which has already been varied in the Development Consent.
I accept Mr Groundwater's evidence and the submissions of Mr Hemmings that the development proposed in the Application is not qualitatively the same development to that approved in the Development Consent. While the development remains two four storey residential flat buildings with a central courtyard the changes do not retain the essence of the development as being of high amenity. For these reasons, it is not substantially the same development and cannot be approved. It is therefore not necessary for me to assess the merits of the Application.

Orders 1. The appeal is dismissed. 2. The application under s 96AA of the Environmental Planning and Assessment Act 1979 to modify the development consent (DA2015/544) for a residential flat building at 12 Marsden Street and 15-21 Brodrick Street, Camperdown, is refused. . 3. The exhibits, except Exhibits 1 and C are returned. Annelise Tuor Commissioner of the Court

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: 12 August 2016

(1999) 106 LGERA 298

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