Randall v Ashfield Council

• calculated under LEP 1985 ** calculated under LEP 2013

The planning controls 10Section 96 of the EPA Act relevantly provides: (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 5) 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 79C (1) as are of relevance to the development the subject of the application. (4)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. ... (8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court. 11The parties disagree on whether the development proposed in the Application is substantially the same as the development approved in the Development Consent and, therefore, whether it meets the jurisdictional test imposed by s 94(2)(a). This issue is discussed later in the Judgment. 12A the time the Development Consent was granted and the Application was lodged, the site was zoned 2(b) Residential under LEP 1985 and development for the purpose of a residential flat building was permissible with consent. 67 Smith Street was listed as a heritage item under cl 31 and Schedule 7 of the LEP 1985 and the site was located within the vicinity of the Quarantine Ground Heritage Conservation Area. Clause 17 permitted a maximum FSR of 0.75:1 in the 2(b) zone and under cl 17A a maximum height to the ceiling of the topmost habitable floor of 6m was permissible. 13LEP 2013 includes a savings provision at cl 1.8A, which applies to 'development applications'. As the proposal is not a development application, the savings provision has no work to do and the relevant planning instrument under which the Application is to be assessed is LEP 2013. Under that plan the site is within the R3 Medium Density Residential zone and development for the purpose multi dwelling housing is permissible with consent and a residential flat building is permissible with consent as an innominate use. 14The existing house at 67 Smith Street is identified as a heritage item under LEP 2013. Under cl 4.3 a maximum height limit of 9m applies. The roofs approved under the Development Consent exceed this height limit and the proposed dormers will add elements that also partly exceed the height limit, but are below the maximum approved height of the roofs. The parties agree that as cl 4.6 applies to a 'development application' there is no requirement to request a variation to the height standard in cl 4.3 for the dormer windows. Under cl 4.4 of LEP 2013 the maximum permissible FSR is 0.7:1 and the Application proposes an FSR of 0.69:1, which complies with this standard. The definition of Gross Floor Area (GFA) and consequently the calculation of FSR is different under LEP 2013 to that under LEP 1985. 15Ashfield Development Control Plan 2007 (the DCP) also applied to the site when the Development Consent was granted and the Application lodged. The DCP included a requirement that development in the 2(b) zone not exceed two storeys. With the commencement of LEP 2013, the DCP no longer applies, however, its provisions have generally been incorporated into and adopted as Ashfield Interim Development Assessment Policy 2013 (the Policy). The Policy permits a maximum building height in the R3 Medium Density Residential zone of 12.5m (which exceeds that in cl 4.4 of LEP 2013), a maximum of three storeys and the use of a maximum 30 degree pitch roof as a fourth attic storey. 16The parties disagree whether SEPP 65 applies to the development, and if it does, the proposal's compliance with the requirement in cl 50 and cl 115 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) for a design verification by a qualified designer of developments to which SEPP 65 applies. This matter is discussed later in the Judgment.

The evidence 17The hearing commenced on site and evidence was heard from objectors to the Application who raised concerns about the privacy and bulk impacts of the proposed dormers and the impacts of traffic and parking, particularly the location of the driveway. 18Expert town planning evidence was provided by Mr D Furlong, for the applicant, and Mr P North, for the council.

Substantially the same development 19Ms Duggan SC, for the council, and Mr Galasso SC, for the applicant, 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 96(2)(a) of the EPA Act. Section 96(2)(a) requires that I be satisfied that the development to which the consent as modified relates (the Application) is substantially the same as the development for which consent was originally granted (the Development Consent). The finding of satisfaction in s 96(2)(a) is a jurisdictional fact, which must be satisfied before an application for modification under s96 can be considered on its merits. 20Consideration of whether the development is substantially the same requires both qualitative and quantitative comparison: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298. The test of whether the development is substantially the same requires assessment of whether the modification "does not radically transform the originally approved development": Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351. The word "substantially" means "essentially or materially having the same essence": Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992); North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. 21In applying these principles, Ms Duggan submits: In this case there are a number of indicia which would lead to the conclusion that the Modification Application would not be substantially the same as that approved. These features are: a) The Development Consent was for 2 storey buildings. The modification application proposes 3 storey buildings; b) The Development Consent proposed no habitable rooms in the roof and therefore no windows, no opportunities for overlooking etc. The modification application proposed habitable rooms in the roof. c) The roof forms as they presented to the public were roofs that were devoid of fenestration. The modification application proposed significant fenestration which brings the perception of occupation and intensity of use. d) The floor plans of the first floor as approved has altered as has the bedroom numbers and unit mix. e) The parking demand has altered; f) The floor space has altered. g) ......the modification proposal will transform the building into a residential flat building for the purposes of SEPP 65 requiring different and other assessments than those required for the original approved development. As a consequence of these changes that are both qualitative and quantitative there will be different considerations on assessment and different amenity impacts for both the occupants of the building, its neighbours, and the broader public. The modified proposal is not substantially the same and therefore the Court has no power to approve the Modification Application. 22Ms Duggan also submits that the circumstances under which the Development Consent was granted must be considered. In particular, the proposal was amended during the hearing to remove the rooms in the roof and consequently the 'third storey' and the requirement to assess the application under SEPP 65. The Application now seeks to replace what was previously deleted and is merely a way to avoid the requirements of SEPP 65. 23Mr Galasso submits that whether the Application is for a 'residential flat development' as defined by SEPP 65 when the Development Consent was not, is not relevant to the qualitative and quantitative assessment required. ... Whether or not an added layer of assessment is required in the circumstances of the modification does not alter the type of question to be asked, nor the answer to that question as a matter of substance rather than form. In any case, ......there is no consequence that flows from the application or otherwise of another environmental planning instrument Depending upon which environmental planning instrument applies the development either does, or does not, strictly involve an additional storey. Obviously, in a practical sense, it will. However, that does not serve, by itself, nor with anything else, to render a conclusion that the development is not substantially the same development. The number of units will remain the same, but some of them will have additional bedrooms. The overall height of the building, including wall height, ridge pitch, volume, setbacks all remain identical, or in the case of parking remain essentially the same (in the sense of an additional car space). The label "three-storey" as against the label "two-storey" does not determine the answer to the s.96 question. 24Mr Galasso acknowledged that the Application would result in an increase in GFA above that approved in the Development Consent. However, the increase of 351sqm is not substantial in the context of the approved GFA of 2311sqm (as calculated under LEP 1985) and the proposal complies with the FSR control under LEP 2013. 25Furthermore, Mr Galasso did not accept that the deletion of the attic rooms in the assessment of the Development Consent is relevant to the qualitative and quantitative question. The final form of the development that was approved by the Court is different to the development for which approval was sought prior to the deletion of the attic rooms. The Court approval reduced the roof pitch, eaves and overall height of the development. The Application 'fits' the proposed rooms into the roof space approved under the Development Consent and not into the roof space for which development consent was originally sought. 26In Mr Galasso's submission, the Application is substantially the same development as that approved under the development consent. Findings 27For the reasons outlined by Mr Galasso, I accept that the Application is substantially the same development as that approved under the Development Consent. 28The Application seeks to modify the Development Consent. Inherent in this, is the concept that there will be changes to the development that was approved by the Court. However, to be substantially the same, the changes may only 'alter without radical transformation' and must not alter an essential characteristic of the Development Consent (see Michael Standley). 29Table 1 provides a summary of the quantitative changes between the Development Consent and the Application. While the number of bedrooms, car spaces, GFA/FSR and the unit mix changes, these are not numerically significant within the context of the development as a whole. The change which was of most concern to council is the use of the roof space for habitable rooms in Buildings B and C thereby changing them, in council's submission, from a two storey to a three storey development and resulting in SEPP 65 being a relevant consideration under s79C(1)(a)(i). 30The use of the roof space is changed from non habitable to habitable space to principally provide bedrooms for the apartment below. The roof form is altered by the introduction of dormer windows and the internal arrangement of the first floor in Buildings A, B and C is altered to provide access stairs. However, these changes are not so significant as to alter the essence of what was approved. 31Under the definition of 'attic' and 'storey' in LEP 2013, Buildings A, B and C remain two storeys with rooms in an attic roof. Whether the development is three storeys for the purpose of SEPP 65 is discussed below. However, even if SEPP 65 is now a relevant consideration in the assessment of the Application when it was not for the Development Consent is not a matter that would result in the Application not being substantially the same but rather it would have different development assessment considerations. 32Amendments to the development application were made during the original hearing and, in Randall, I required further changes prior to granting development consent. These changes included a reduction in the pitch and height of the roofs and consequently the bulk and overshadowing impact of the proposal. The habitable rooms proposed in the Application are contained in the final approved roof space. The overall height of the roofs remain the same and, other than the dormers, the roof form is the same as that approved by the Court resulting in no material increase in the bulk and scale of the development or impacts such as overshadowing or privacy. 33The Application remains a residential development above basement car parking. The number of dwellings remain the same and they are housed in the same number of buildings with generally the same extent of excavation, floor plates, floor levels, height, external appearance, building separation, open space and landscaping. While marginally more people may use the development and its open space, this increase in intensity is not such that it changes the essence of the development. 34In undertaking the qualitative and quantitative comparison required, I find that the Application is substantially (and in essence) the same as the Development Consent. The changes are not significant either in number or in substance and the Development Consent is not radically transformed and it is essentially and materially the same.

SEPP 65 35The parties disagree on whether SEPP 65 applies to the development. This disagreement centres on cl 4 of SEPP 65 which provides: Application of Policy (1) This Policy applies to development being: (a) the erection of a new residential flat building, and (b) the substantial redevelopment or the substantial refurbishment of an existing residential flat building, and (c) the conversion of an existing building to a residential flat building. (2) If particular development comprises development to which subclause (1) applies and other development, this Policy applies to the part of the development that is development to which subclause (1) applies and does not apply to the other part. 36A 'residential flat building' is defined under cl 3 of SEPP 65 as: residential flat building means a building that comprises or includes: (a) 3 or more storeys (not including levels below ground level provided for car parking or storage, or both, that protrude less than 1.2 metres above ground level), and (b) 4 or more self-contained dwellings (whether or not the building includes uses for other purposes, such as shops), but does not include a Class 1a building or a Class 1b building under the Building Code of Australia. Note. Class 1a and Class 1b buildings are commonly referred to as town houses or villas where the dwelling units are side by side, rather than on top of each other. 37Mr Galasso submits that cl 4(1)(b) and (c) do not apply as the Application is neither for an 'existing' residential flat building, nor the conversion of an 'existing' building. Clause 4(1)(a) is not applicable as: SEPP 65 applies only to a residential flat building, as that term is defined in clause 3. The second element (the number of self-contained dwellings) is obviously satisfied, but the first (the number of storeys) is not. The SEPP does not define how storeys are to be counted. SEPP 65 is a piece of delegated legislation made under the Environmental Planning and Assessment Act. So too is Ashfield LEP 2013. Those two environmental planning instruments operate together in relation to development on the subject land, if applicable. It is only where there is an inconsistency between the two EPIs that SEPP 65 prevails: clause 6. LEP 2013 applies to the subject development because the savings provision in clause 1.8A is inapplicable. The LEP was made in December 2013 and as at that date there was no "development application", but rather an application made to the Court pursuant to s.96(8). Accordingly, LEP 1985 has no application. In the Dictionary to LEP 2013 the concept of a "storey" is defined to exclude an attic. An "attic" is itself defined as any habitable space, but not being a separate dwelling, contained wholly within a roof above the ceiling line of the storey immediately below (the exception being dormer windows and the like which do not need to be immediately below). Thus, pursuant to Ashfield LEP 2013, the development remains a two-storey development. .....Accordingly, for the purposes of SEPP 65, as a matter of law, the development remains a two-storey development. 38Mr Galasso referred to State Environmental Planning Policy No 6 - Number of Storeys in a Building (SEPP 6) which is to be repealed with the commencement on 22 February 2014 of State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Commercial and Industrial Development and Other Matters) 2013 and consequently no longer applies to the Application. 39Furthermore, Mr Galasso submits that even if SEPP 65 is relevant, it does not result in the requirement for a DVS, as contended by council, for the following reasons: ...the requirement for a design verification statement is derived from the Environmental Planning and Assessment Regulation, 2000. ....the Application before the Court is not a development application, but is an application to modify an existing Development Consent. Pursuant to clause 115(3), a design verification statement is only required for such a modification "if it relates to residential flat development for which the development application was required to be accompanied by a design verification statement from a qualified designer under clause 50(1 A)". That requirement was not engaged with respect to the Development Application the subject of this Court's determination. 40Even if a DVS were to be required, Mr Galasso submits that the Amended DVS would satisfy the requirements of SEPP 65 and the Regulations. 41Ms Duggan submits that SEPP 65 applies to the Application as it is development referred to in cl 4 (1), and is a residential flat building as defined under cl 3. She rejects the submission that the proposal is not three storeys when measured by reference to definition of 'storey' and 'attic' in LEP 2013 for the following reasons: a) the definition in Ashfield LEP are not incorporated into the SEPP, nor is the LEP said to qualify the SEPP in any way. One cannot use the definition in an unrelated document to interpret a provision in another document; b) to adopt this approach to the determination of the meaning of storeys has the potential to undermine the operation of the SEPP and provide inconsistent application of its controls across the State. If the application of the SEPP depended upon the definitions in a Local Planning instrument each Council can decide for itself whether to opt in or out of the SEPP or even require buildings to be in the SEPP even where they would be excluded by the SEPP itself. c) The express terms of the SEPP provide a textual indication that the SEPP did not intend for attics to be excluded. The definition of residential flat building in clause 3 makes specific provision in respect of which levels of a building are to be excluded for the purposes of calculation. It does not exclude attics therefore the inference is that the legislature did not intend to exclude attics. 42Ms Duggan accepts that cl 115(3) of the Regulations includes provisions for modification applications relating to development to which SEPP 65 applies. She submits that this should be read to achieve the objectives of SEPP 65. Given the circumstances, where a DVS was not required for the Development Consent, it must now relate to the residential flat building as a whole 'to require otherwise is to undermine the operation of the SEPP and render futile the requirement of design verification'. 43The DVS provided addresses only the proposed changes and not the whole building. Ms Duggan submits: Absent the necessary design verification statement the Court does not have power to approve as no application has been made in accordance with the Regulations - being a necessary precondition to the exercise of power under s.96 Findings 44It is not necessary for me to adjudicate on whether the proposal is three storeys and SEPP 65 applies. Even if Buildings B and C are three storeys and SEPP 65 does apply, I accept Mr Galasso's submissions that there are no consequences for the Application. 45SEPP 65 includes notes which refer to the requirement for design verification however these do not form part of the Policy (cl 3(2)). Rather the requirement for a DVS for a development application is contained in cl 50(1A) of the Regulations and in cl 115(3) for an application for the modification of a development consent. Clause 115(3) provides: In addition, an application for the modification of a development consent under section 96 (2) or 96AA (1) of the Act, if it relates to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under clause 50 (1A), must be accompanied by a design verification from a qualified designer, being a statement in which the qualified designer verifies that: (a) he or she designed, or directed the design, of the modification of the residential flat development, and (b) the residential flat development, as modified, achieves the design quality principles set out in Part 2 of State Environmental Planning Policy No 65-Design Quality of Residential Flat Development, and (c) the modifications do not diminish or detract from the design quality, or compromise the design intent, of the development for which the development consent was granted. 46In its terms, cl 115(3) only requires a DVS for a modification application 'if it relates to residential flat development for which the development application was required to be accompanied by a design verification from a qualified designer under cl 50 (1 A)'. The Development Consent was not required to be accompanied by a design verification from a qualified designer under cl 50(1A) and consequently the Application is not required to be accompanied by a design verification from a qualified designer under cl 115(3). In the circumstances of this case, I do not accept that this does not achieve the objectives of SEPP 65 given that I have found that the development is substantially the same development and the experts have agreed that the proposed amendments do not result in any material or unacceptable impacts. Other issues 47Council contends that the Application should be refused, as the proposed dormers would exceed the height limit. Mr Galasso submits that the overall height of the buildings approved under the Development Consent does not change and the proposed dormers are within this approved maximum height and do not result in any material impacts. 48The planners agree that there would be no appreciable difference in the height, bulk or appearance of the buildings resulting from the dormers and there would be no negative impacts such as a material increase overshadowing, loss of privacy or traffic generation. Findings 49The proposal, when approved complied with the maximum permissible height under LEP 1985 of 6m to the underside of the ceiling and two storeys in DCP 2007. As stated above, LEP 2013 is now the relevant document under which the Application is to be assessed and cl 4.4 permits a maximum overall height of 9m. The Policy permits 12.5m, three storeys and a forth storey if it is an attic in a roof. Part of the dormers exceed the height limit in cl 4.4 but are below the maximum approved under the Development Consent and the number of storeys in the Policy (the height limit of 12.5m in the Policy is to be given little weight as it exceeds that in LEP 2013). 50The Parties agree that a request under cl 4.6 to vary the height limit is cl 4.4 is not required as the Application is not a development application. Furthermore, the experts agree that there are no material impacts that arise from the proposed dormer windows or internal changes proposed in the Application. They have proposed a condition (Condition 1(f)) be included that requires fixed translucent glazing to the dormer window of unit 9 to address the potential for overlooking from this unit. 51The issues raised by the objectors would not be reasons to refuse the Application. In particular, the experts agree that the height and bulk of the dormers and privacy impacts are acceptable. The location of the driveway approved in the Development Consent does not change and council did not raise any issues in relation to traffic or parking.

Conclusion 52For the above reasons, the Appeal may be upheld and the Application approved. The conditions of the Development Consent are modified to amend the description of the proposed works to include 41 cars instead of 40, incorporate the approved plans (Condition A1), design changes (Condition B1(f)), amended s94 contribution (Condition C9) and revised BASIX Certificates (Condition E19).

Orders 53The orders of the Court are:

1. The appeal is upheld;
2. The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA10.2012.051 for the purposes of a residential development at 67-75 Smith Street, Summer Hill is determined by approving the modifications subject to the changes to the conditions of development consent set out in Annexure A;
3. As a consequence of order (2), Development Consent No DA10.2012.051 is now subject to the consolidated, modified conditions of development consent set out in Annexure B; and
4. The exhibits, other than Exhibits 1, A and B, 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: 04 March 2014