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[2012] NSWLEC 1212
Land and Environment Court (NSW)
2012-08-02
Original judgment source is linked above.
The applicant's position 15The applicant, however, maintains that when looking at the development as a whole, the change to this aspect of the original approval is a minor change. While the structure is some 4 m2 larger and for use as a habitable space for the adjacent ground-floor apartment, the applicant contends the development is essentially the same development originally approved because this aspect of the development approved by the original consent was minor in the whole development. The applicant submits the whole development covered an area of some 700 m², in that context the proposed additional 29 m² of habitable space is minimal and therefore, does not substantially change the originally approved development. 16In short, after a qualitative and quantitative assessment of the application, the essence off the development is the same: Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 (24 February 1992). 17Mr Lovell was of the opinion that the use was the same. The original consent allowed people to occupy a space, albeit in an outdoor structure, and the same occupation is provided for in the proposed enclosed indoor structure. While he agreed that the entry doors to the lounge room area would in all likelihood be the main entrance to the apartment, he did not accept that this changed the development. In his planning assessment he told the Court that holistically the development was substantially the same as that originally approved. The applicant relies on the judgment of Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, and submits that s 96(2) is to be regarded as a "facultative, beneficial provision" it is to be construed and applied in a way that is favourable to those who seek to benefit from the provision.
Finding 18Having considered the evidence, including my inspection of the property at the commencement of the hearing and the objectors' evidence taken on site, I have decided that the applicant has not satisfied me of the threshold jurisdictional fact required by s 96 of EP & A Act namely, "that if approved, the modified development will be substantially the same development as approved by the original 2005 consent." In coming to that decision, I am mindful that I am required to compare the development approved in 2005, prior to modifications made to date. Therefore, after that assessment and based on the evidence before me, I must dismiss the appeal because I am not satisfied that the development as proposed will be substantially the same as that originally approved, prior to any modification. 19Council's bundle of documents includes the Environmental Impact Statement submitted by the application with the original consent and the Council's assessment reports. I have considered those documents and the artist's impression of the proposed privacy screen at p 42 of the bundle taken from the lowest level balcony at 2 Holdsworth Avenue. The structure depicted is essentially what was approved in 2005 by the original consent. The approved development is described on the Notice of Determination dated 22 April 2005 as follows: Alterations, additions and landscaping to existing residential flat building. Unit 1, internal refurbishments to unit, raise roof height of ground floor garage and installation of a roofed privacy screen to garage roof deck. New glass balustrades to garage roof deck and balconies of other unit. 20I note the words "...installation of a roofed privacy screen to the garage roof deck..." are not an approval of a room capable of use as a lounge room. 21To my mind condition 2 underlines the consent authority's concern to reduce any impact caused by the privacy screen when viewed from the neighbour's property it is reduced in length. 22Condition 2 of that consent, as I quoted earlier, was introduced to reduce the visual impact of the proposal from adjoining properties. The "roofed privacy screen" was shortened in length to reduce the visual impact of the proposal from the adjoining properties. 23After a consideration of the plans and the Notice of Determination and the documentation which makes up the 2005 consent and the proposal before the Court in exhibit A, when compared from both a qualitative and a quantitative perspective, I agree with Mr Black's evidence that: The originally approved open form of the shelter structure and its intended use as part of the private open space area of the adjacent apartment, the changes proposed to the shelter structure including increased width, length and height, and its enclosure and full modification for use as a lounge room, changes the essence and fundamental nature of the structure as originally approved. 24On this basis, it is my view that the structure cannot be considered as "substantially the same" development as that originally approved in 2005. 25I cannot agree with Mr Lovell's assessment that quantitatively, the enclosure of the structure shelter represents a relatively minor element of the approved development in terms of its floor area, size and visual contribution, and does not significantly or materially change the physical form of the approved development. Nor do I accept that qualitatively, the amended development does not materially change the physical or operational relationship with surrounding land, and there are no merit-based impacts that would warrant refusal of the amended development. 26Based on the legal authorities to which I have been referred, the merits of the amended development are not a relevant consideration in the determination of the question posed by s 96(2) of the Act in respect of jurisdiction. 27Accordingly, having come to the decision that I do not have jurisdiction, there is no need for me to deal with the merits of the application. 28Therefore, I make the following orders: (1)The appeal is dismissed. (2)The exhibits are returned upon written publication of this judgment. Susan Dixon 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: 14 August 2012
Powell
City of Sydney Council
Jurisdiction 12The Council contends that, given the originally approved open form of the shelter structure and its intended use as part of the private open space area of the adjacent apartment, the changes proposed to the shelter structure by this application to modify it for use as a lounge room, changes the essence and fundamental nature of the structure as originally approved. On that basis, the Council contends that the structure cannot be considered as "substantially the same" development as originally approved. In support of its case, the Council invites the Court to compare the original consent with the proposal from both a qualitative and quantitative assessment as discussed by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 and subsequent legal authorities. 13It is the Council's case that the use of this habitable space outside the footprint of the building approved by the original consent and accessed through a substantial double door cannot be substantially the same development described as a "roofed privacy screen to garage roof deck" in the Notice of Determination issued to the applicant in respect of the original consent on 22 April 2005. Nor does it meet a description as a "roofed privacy screen aligning with the western most edge of the balconies at 2 Holdsworth Avenue". (Condition 2 of the Notice of Determination exhibit 2) 14Accepting that the use of the building can change the essence of the development, the Council submits, consistent with its Notice of Determination, that there is simply no jurisdiction to approve the modification application before the Court and therefore the appeal must be dismissed.
[1992] NSWLEC 8
(1998) 43 NSWLR 468