Rahme v North Sydney Council

Rahme v North Sydney Council - [2023] NSWLEC 1519 - NSWLEC 2023 case summary — Zoe

Background

The Subject Application was lodged by David Rahme who is the director of Anton Kurraba Pty Ltd which owns the Site together with Therese Rahme and Roslyn Hills who have also provided their written owners' consent (Ex D).
The Respondent in these proceedings is North Sydney Council. The North Sydney Local Planning Panel is the consent authority for the determination of the Development Application pursuant to s 2.19(1)(a) and s 4.8 of the EPA Act.
On 15 April 2020, Development Consent No 333/19 was granted by the North Sydney Local Planning Panel (the Panel). The Notice of Determination dated 24 April 2020 sets out the following reasons for approval: "The Panel is satisfied the measures imposed by conditions provide privacy for the adjoining property at No. 176 Kurraba Road. The Panel noted the proposed landscape plan includes the installation of Lilli Pillies along the northern boundary at the lower ground floor (lower) and conditions C27 provides for appropriate advanced growth species to be implemented. With respect to the view impact the Panel has considered the extent of views available from surrounding properties and has determined the proposal provides for view sharing and the impacts are minor and acceptable in the circumstances."
On 2 June 2021, Modification Application No 133/19/2 was approved by the Panel for modifications to Conditions A1, A3, C18, and C21 (Ex 2 Tab 4]. The approved plans (the plans) referenced in Condition A1 (as modified) increased the height of the development by 350mm to allow clearance to the Sydney Water sewer main running through the Site and the manhole under the building, and to improve floor-to-ceiling heights. The plans also made various internal layout changes to improve the amenity of the units.
On 26 October 2021, the Subject Application was lodged with the Respondent. The Subject Application was notified in accordance with the North Sydney Community Engagement Protocol between 12 and 26 November 2021. Five submissions were received (Ex 2 Tab 9).
On 2 March and 1 June 2022, the Subject Application was deferred by the Panel. On 15 June 2022, the Subject Application was refused by the Panel.
On 5 August 2022, Building Information Certificate No. C35/21 (BIC) was issued by the Respondent for "works described as items 1-14 as covered by engineering certificate dated 12 June 2022, issued by John Romanous & Associates with drawings numbered 6436-S10, Revision M, dated 28 June 2021 and 6436-s20, revision O, dated 16 August 2021" (Ex 2 Tab 19).
On 11 August 2022, these proceedings were commenced by the Applicant.
On 26 August 2022, Construction Certificate 200108/07 (CC) was issued by Grant Harrington. Pursuant to s 4.16(12) of the EPA Act, the CC is taken to form part of the relevant development consent.
The Subject Application was amended with leave of the Court on 2 June 2023 (Ex B) and again on 19 July 2023 (Ex F).
As a result of the amendment to the Subject Application, the parties reached a consent position. The Consent Orders were notified in accordance with paragraph 99 of the Court's Practice Note - Class 1 Development Appeals on 10 June 2023 (Ex 5). Although changes were made to the final Consent Orders tendered on 19 July 2023 (Ex 11), those changes were made to address concerns raised by the residents.

[3]

The Modification proceedings

The Subject Application was originally lodged pursuant to s 4.55(1A) of the EPA Act, on the basis that the modification is of "minor environmental impact". There is authority for the proposition that "…although a modification application is made under s 4.55(1A) of the EPA Act, if it transpires that there is more than minimal environmental impact, the Court can exercise the power under s 4.55(2) of the EP&A Act if on the merits it is appropriate to do so…" (emphasis added): see Erina Investments Holdings Pty Ltd v Snowy Monaro Regional Council [2021] NSWLEC 1204, at [34] (Clay AC).
The parties requested the Court to exercise its power as consent authority under s 4.55(2) of the EPA Act to modify the Development Consent, which does not include the "minor environmental impact" constraint and provides for a different test, as discussed below.
The proposed modifications are as described in Annexure A to the Consent Orders and shown on the amended architectural drawings and landscape plans at annexures A and B to the Consent Orders (Ex 11). Changes have also been made in the consolidated conditions of consent at Annexure B to the Consent Orders. The proposed modifications are identified as follows: 1. Demolition and rebuilding of walls as shown in WC, shower and laundry on proposed lower ground plan. Demolition and rebuilding of brickwork above and surrounding laundry door as shown on east elevation. 2. Approval for use of laundry/storage, WC and shower on lower ground floor (lower) of Unit G01. 3. Glazed windows to north and east elevations of approved balcony on lower of Unit G01 and change of use to a study. 4. Demolition and rebuilding of wall between proposed study and sitting room. 5. Reconfiguration of ensuite to Bedroom 1 of Unit G01 and removal of existing window and replacement with new window. 6. Changes to glazing of W26 and to screening and balustrade glazing on balcony of Bedroom 1 of Unit 201. 7. Provision of 800mm awning on Level 2 over Level 1.
In the joint report of the parties' town planning experts (the experts), Ms McCabe for the Applicant and Mr McFadden for the Council, dated 26 June 2023 (Ex 6), it was agreed that all contentions raised in the Council's Statement of Facts and Contentions filed on 25 November 2022 were resolved by the preparation of the amended plans and conditions of consent.
The matter was listed for hearing starting on site on 3 July 2023. At that time, further written and oral submissions were received from the neighbouring residents (Ex 4 and Ex 10). Various errors were also identified by the experts and the parties on the plans at the site hearing. A Supplementary Joint Report of the parties' experts was prepared and filed on 12 July 2023 (Ex 9). The experts noted at page 4 that: "The plans have been amended to clarify what approval is being sought for and to correct references on the plans relating to works approved by Construction Certificate in CC200108/7 issued on 26 August 2022, or works authorised under the Building Information Certificate 35/21 issued on 5 August 2022."
The Supplementary Joint Report set out the differences from the plans considered by the experts in their 26 June 2023 Joint Report (Ex 6) and provided a table at pages 5 to 8 which addressed in detail the issue raised by each of the residents, the experts response to that issue and references to the relevant plans which were marked up and attached to the Supplementary Joint Report.
The experts' general comments in the Supplementary Joint Report in response to the additional submissions from the neighbouring residents, are as follows: (Ex 9, page 5 - 7) "(i) in any development proposal there will be some differences between development consent plans and plans issued under a Construction Certificate as CC plans will often provide additional detail; (ii) The Development Consent and CC are read as a whole. The CC and any approved plans and specifications issued as part of the CC is taken to form part of the Development Consent under s4.16(12) EPA Act; (iii) The majority of matters raised are either: i. under consideration in this modification, or ii. authorised under the EPA Act by the CC 200108/7 or BIC 35/21. (iv) Window numbering changed between the original DA consent and the first s 4.55 modification."
The experts concluded in their Supplementary Joint Report that taking into consideration the additional matters raised, the works proposed in the amended modification do not result in further additional impacts on the neighbouring properties.
The role of neighbouring owners, residents and the community as objectors to a development application the subject of a Class 1 appeal is not at large.
This has been recently discussed by the NSW Court of Appeal in McMillan v Taylor [2023] NSWCA 183, at [37] - [38] (Basten AJA) as follows: "[37] Procedural fairness requires that a person who may be adversely affected by a decision should have an opportunity to be heard. The content of the duty is dependent upon the statutory context in which it arises. The present context is, in part, derived from the object in s 1.3(j) of the Planning Act "to provide increased opportunity for community participation in environmental planning and assessment". That purpose was effected by giving the applicants notice of the development proposal and an opportunity to make submissions to the Council, as the relevant consent authority. The applicants availed themselves of that opportunity. Consent was refused by the Council. When the owners appealed to the Court, the applicants were accorded a further opportunity to explain their objections at the outset of the hearing of the proceeding, being the on-site visit on 9 June 2022. They availed themselves of that opportunity. The statutory scheme did not provide for further opportunities. [38] As explained by the Chief Judge of the Land and Environment Court in Morrison Design Partnership Pty Ltd v North Sydney Council [2007] , [14] that purpose has limits: "51 Community consultation and public participation should not be viewed as being adversarial. The community and affected persons have no entitlement to be an adversary to the applicant for development consent in a contest as to whether or not development consent should be granted. 52 Community consultation and public participation under the [Planning Act] are not intended to give the community or affected persons who object to development any entitlement to veto development. The planning scheme established by the [Planning Act] vests in the relevant consent authority, and on an appeal this Court exercising the functions of the consent authority, the tasks of determining the matters of relevance to the development application; taking those matters into consideration as well as any submissions made in response to the consultation process; according weight to the matters as is considered appropriate; and reaching a merit determination. …"
At the resumed hearing on 19 July 2023, the Applicant was granted leave to rely upon the amended plans as annexed to the Supplementary Joint Report which referenced the changes shown on the amended plans (Ex F). As a result, the parties reached the agreed position that the Subject Application, as amended, should be approved in accordance with the Consent Orders attaching Annexures A and B, tendered in Court (Ex 11).
At the hearing Mr Knox, solicitor for the Applicant, took the Court through; (i) each building element or work of the proposed amended modification; (ii) the building element or work approved by the CC as incorporated into the Development Consent; and (iii) the building element or work the use of which was authorised by the BIC; as drawn and marked up on the Consent Orders Plans (Ex F). I am satisfied and agree with the Respondent as embodied in the Consent Orders that the residential flat building nearing completion meets the requirements under the EPA Act for its future use. I do not accept the neighbouring residents' submissions that the Court should refuse the Consent Orders.
Certain structures as shown on the plans have been constructed. The Court has the power to approve the use of those structures in the future irrespective of whether such structures were unauthorised: Ku-ring-gai Council v Buyozo Pty Ltd [(2021) 248 LGERA 300; 2021] NSWCA 177 at [41] (Preston CJ).

[4]

Modification Power

The relevant statutory provisions granting the Court as consent authority the power to modify the Development Consent are in s 4.55(2)-(3) of the EPA Act, which provides 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 4.8) 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. (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 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Cases Cited (10)