Rahme v North Sydney Council

The Modification proceedings

1. 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).
2. 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.
3. 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.
4. 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.
5. 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."
6. 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.
7. 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."
8. 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.
9. 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.
10. 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. …"
11. 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).
12. 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.
13. 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).

Modification Power

1. 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.

Section 4.55(2)(a) "Substantially the same" test

1. The power to modify a development consent is a power "to alter without radical transformation" the consent: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [14] (Preston CJ). The result of the comparison between the original consent and the consent as modified must be a finding that the development is "essentially" or "materially" the same as the approved development: Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8; Aarage v Inner West Council [2019] NSWLEC 85.
2. I am satisfied and agree with the parties that the Subject Application results in a development which is substantially the same as originally approved because the proposed modifications: 1. Maintain the proposed use, overall maximum height and general envelope of the proposed residential flat building; 2. Maintain the number of dwellings, number of bedrooms and the number of car spaces; 3. Although there will be minor changes in the proposed gross floor area, the changes will not be apparent in the streetscape and amenity impacts upon neighbouring properties have been substantially mitigated.

Section 4.55(2)(b) Consultation/Concurrence

1. There were no conditions imposed on the Development Consent as a result of concurrence requirements.

Sections 4.55(2)(c)-(d) Notification

1. The Subject Application was notified in accordance with the Environmental Planning and Assessment Regulation 2000 and the North Sydney Community Engagement Protocol between 12 and 26 November 2021.
2. The concerns raised by the adjoining owners have been taken into account, where relevant and appropriate, by the amended plans and the proposed modifications to the conditions of consent.

Section 4.55 (3)

1. To the extent that it is applicable to a modification application, the parties agree that the development as modified will be characterised as a residential flat building development which is permissible with consent in accordance with the Land Use Table relating to Zone R4 High Density Residential under the North Sydney Local Environmental Plan 2013 and the proposed use is compatible with the objectives of the R4 zone.
2. The parties submit that the Subject Application, as amended, ought to be approved taking into consideration the relevant matters in s 4.15(1)(a) - (e) of the EPA Act.
3. The parties have taken into consideration the reasons given by the consent authority for the grant of consent as extracted above at [5].

Environmental Planning and Assessment Regulation 2000 (the 2000 Regulation)

1. As the Subject Application was lodged prior to 1 March 2022, pursuant to Sch 6 s 3 of the Environmental Planning and Assessment Regulation 2021, the 2000 Regulation continues to apply to the Subject Application.
2. A Design Verification Statement has been provided to the Court in accordance with the requirement of cl 115(3)-(3A) of the 2000 Regulation (Ex C).
3. An amended BASIX certificate has been provided to the Court in accordance with the requirement of cl 115(6) of the 2000 Regulation (Ex B Annexure H).

Conclusion

1. For the reasons set out above and based on the evidence before me, my observations on site and oral submissions made to me on site, I am satisfied that the modification application (as amended) is substantially the same development as that originally approved and should be granted under s 4.55(2) of the EPA Act. I am also satisfied that the neighbouring resident objectors have been accorded procedural fairness and there are no jurisdictional impediments to the making of the proposed Consent Orders.
2. I am not required to consider the merits of the application because the parties reached an agreed position on all contentions prior to the commencement of the hearing . I note the parties' agreement was supported by the town planning experts and to the extent that it is relevant I accept and agree with the assessment and conclusions reached by the town planners, Ms McCabe and Mr McFadden in their joint reports.
3. The appeal should be upheld and Mr David Rahme's modification application No 333/19/4 (as amended) to the Development Consent No 333/19 for the residential flat building at 182 Kurraba Road, Kurraba Point, be granted.

Orders

1. The Court orders: 1. The appeal is upheld. 2. Development consent No. DA 333/19 is modified in the terms in Annexure A. 3. Development Consent No. DA 333/19 as modified by the Court is Annexure B. 4. The Exhibits are returned except Exhibits A, F, and 11.

Acting Commissioner of the Court Annexure A (211141, pdf) Annexure B (485939, pdf)

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 September 2023