Sahade v Inner West Council

The Site view

1. These proceedings commenced on site and three objectors gave evidence on site. The Court was taken through the Site starting in the north-east corner. The Respondent observed that the plans that are the subject of this modification application, which are identified as a series of bar one sheet, revision L plans, namely Drawings A0.00L 1.01L 1.03L 2.01L 2.02L 3.02L 3.03L 4.01L 4.02L 5.01C 8.01L 8.02L and 8.03L. The Respondent also identified to the Court that in some respects the plans that were the subject of the modification application did not fully reflect what was going to be observed on the Site. One example of this was pointed out in the vicinity of the north-eastern end of car spaces 1 and 2 on the ground floor plan. The Court was able to observe that the concreted area, that would be the area generally where those spaces were proposed, went closer to the side boundary than as indicated on the Ground Floor Plan Drawing 1.01L (Ground Floor Plan), with the consequence that the landscaping indicated in that side setback would in part be in part of the concrete area.
2. The view proceeded by travelling down the north-eastern boundary observing a row of planting, which was starting to form a hedge, in the order of about half a metre width from the fence, and we were at that point standing on largely soil, unformed in an area that is identified on the Ground Floor Plan as "planting".
3. The area described on the Ground Floor Plan as a covered walkway was observed, and the Respondent pointed out that this area is more accurately described as an enclosed walkway. We looked and walked within that covered walkway, and looked into some of the rooms, spaces that are part of what is constructed, and noted various other differences between what is depicted on the Ground Floor Plan and what exists on Site. We then exited the enclosed walkway on the southern end, had a look in the vicinity of car spaces 3, 4 and 5 in the south-eastern corner of the Site. We observed what is marked on the Ground Floor Plan and the Site Plan, as the "unapproved privacy screen" (Privacy Screen). We made observations that the Privacy Screen has a certain thickness to it, formed by framing of panels in the order of about 300 millimetres (mm) or so in thickness.
4. We observed that that part of the Privacy Screen that is indicated as an angle on the Site Plan, and the splay, is in fact a gate. We opened the gate. We observed that there was a series of steps leading down from a concrete area, roughly where space number 5 is located, and we made the observation that the steps down to the dirt area was perhaps in the order of about 700mm difference in ground level. We observed an existing established tree of a certain height and breadth that's not indicated on the Site Plan, roughly at the point where the splay of the Privacy Screen returns to the north, just beyond that point. We made some observations about how the space 3, 4 and 5 that are proposed in this Proposed Modification would be over some parts of the side setback that are significantly lower in ground elevation, and which would appear to require the removal of the established tree.
5. We then walked back up in the northerly direction along that side set back, and the Court was able to observe a wastewater treatment facility, which appeared to be a piece of machinery comprising of a treatment pod and with a pump underneath, and that seemed to have series of pipes connecting to it as well as leading away from it. It appeared to serve some function to take water that might come off the carwash internal area proper, treated in some fashion and then discharge it back. We then went back into the Site and stood a little bit to the west of car space 4 in that area, and we made some observations about the covered walkway, how it extended further to the south-east than is indicated on the Site Plan.
6. It was then pointed out that the A-frame extension on this southern end occurs in a similar fashion to the northern end. That is to say it is an extension both laterally, as well as a building element that, now, has been constructed in metal as distinct from glazed or translucent panels in accordance with the original consent. It was then pointed out that this southern end of the car wash tunnel had a series of drains set into the concrete, and the Applicant said that the reason for constructing the extensions to the A-frame was an attempt to divert rainwater that would fall on those extra roof structures away from something that would otherwise go to sewer.
7. The Court was then able to make observations of a downpipe that was affixed to the south-western pole holding the A-frame structure. It was pointed out that there was a pipe on the south-eastern side, but that pipe did not appear to go down to ground; instead, it appeared to intersect or discharge to the roof of the amenities areas that are indicated between the car wash tunnel and the covered walkway, and it appeared to show that water might discharge from the A-frame roof structure onto the roof of the amenities area, and then through some other downpipes connected to the gutters of the covered walkway, would be discharged back into the Site in an uncovered pipe that the Court was able to observe discharging onto the concrete pack.
8. It was then pointed out that there was a portion immediately on the southern end of the tunnel that had an apparatus for pressure washing, and that pressure wash point had two pieces of machinery to it. One of them had a blue hose, and that was demonstrated by the applicant's counsel to be the pressure wash hose, and then the other hose, which was covered black, had a different kind of wand, and it was described that that was a degreasing wash, not of high pressure, and those two things were demonstrated in the use as being part of the process cleaning the vehicles going through.
9. We then observed that the car wash tunnel itself is automated in that it has a track through the middle of it on which cars are conveyed. Arranged throughout the tunnel, there are a series of sprays and brushes and, ultimately, at the northern end, a blowing facility to start to dry the vehicles. Once vehicles exit the tunnel towards the Kingston Street end, they are driven, and they make a left turn, and may be directed to a space underneath the pergola, which is the shade structure on the Site Plan. The Court observed cars being vacuumed and/or wiped underneath the pergola. The Court also observed that there appeared to be vacuum pipes attached to the underside of the shade structure, and the Court identified that there were 12 such vacuum points.
10. There was an observation made that there were six car spaces underneath that shade structure. Between the shade structure or the pergola and the northern boundary on Kingston Street, there is an area of hardstand where it was also observed where cars were driven out of the car wash tunnel and into that space, and operators of the car wash were drying those cars, that is, not underneath the pergola but, rather, in that space.
11. The Court was also, earlier, taken to the driveway layback which is on the north-eastern side and, on the Site Plan, is labelled "Approved works DA10.2017.170.3", and it was identified how the landscaping that is in existence at the present is not as depicted in the Site Plan in that it stops some distance short of the north-eastern site of the driveway.
12. We then went around the Site in an anticlockwise direction. We went towards the corner of Kingston and Ramsay Street. We made some observations of the driveway on Kingston Street, and made some observations about how the crossover in that location is proposed to be reduced in width, and we then made observations of how it was proposed that the north-west corner of the subject site is proposed to be provided with a larger garden bed in a generally triangular configuration, as indicated on the Site Plan. We observed the vacuum and observed the sign that is indicated behind the vacuum which has some different content to how it was at the time of the application. We observed the air point and the space for what is marked as car park 9.
13. We then walked further down Ramsay Street. We made observations of a sign about halfway down that boundary which contained a fuel price board and a BP logo, and has been referred to as sign B. We then made some observations of the pole sign that currently exists at the south‑western corner, referred to as sign C, and that is the sign that partly overhangs beyond the subject site's boundary onto the road.
14. We then looked at the Site Plan and observed that the existing ice machine was in a location that is closer to Ramsay Street than is proposed on the Site Plan.
15. We made some observations that the fencing on the south-eastern boundary, that is, between the subject site and number 93 Ramsay Street, appears not to be constructed in the manner depicted on the Site Plan in that it appeared to terminate a distance back from Ramsay Street, roughly in alignment with the front alignment of the adjoining dwelling on number 93 Ramsay Street.
16. We then went around to number 93 Ramsay Street, and with the permission of that owner, we went down along the side passage and made some observations about the significant difference in ground levels between the Site and number 93, and the Court's attention was directed to the different heights of the retaining wall, and we could see how the acoustic wall had been constructed above. We walked to the back of the property, and the Court's attention was directed to the point where the Privacy Screen commences relative on the other side of the Site, and we identified that feature.
17. We then returned back into the Site, had a look at more signs.
18. We then went into the service station building, and we made some observations of the layout, how it is apparently different to that depicted on the Proposed Floor Plan, Drawing 2.01L. In particular, the northern portion of the inside of the service station had a long table oriented generally in an east-west orientation and facing the pergola structure. There was also some bench seating along the northern side, with bar stools and a bench.
19. We then walked back out of the service station building, went across to the north-west on the opposite side of the intersection of Kingston Street and Ramsay Street, across the other side of the roundabout, and we looked back towards the Site from that vantage point. The Court's attention was directed to the observations of the A-frame and its extension, comparison with the forms of gable and roof for the buildings further down Kingston Street. The observations were made about the large Crystal Car Wash sign that's been erected behind and above the pergola. The Court's attention was drawn, also, to signage along the shops on the eastern side of Ramsay Street, and some observations were made about where, predominantly, those signs occurred at or below awning level, not above them.
20. I now move on to considering the first aspect of these proceedings and make my finding as to the jurisdictional prerequisite of whether the Proposed Modification is substantially the same as the development for which consent was granted. The balance of the contentions are what is commonly referred to as merit contentions as listed above at [8].

Is the modification substantially the same as the development for which consent was granted? (Contention 1)

1. This is a jurisdictional prerequisite that must be satisfied before the Court as consent authority may approve the modification as sought. That means that the Court does not commence any merit assessment of the Proposed Modification unless and until the Court is satisfied of this jurisdictional prerequisite.
2. The Applicant's case is set out in the Statement of Facts and Contentions in Reply (SOFAC in Reply) filed 29 June 2022 (Ex A) which is that: "While the Act requires that the development proposed by MOD/2022/0008 is substantially the same development as the development approved by DA 10.2017.170.1 (ie the original consent), it does not follow that Modification Consent Nos. 10.2017.170.2 and 10.2017.170.3 are irrelevant in this process. Far from it, these consents illustrate what Council has previously deemed to be substantially the same development as that approved by the original consent, creating an expectation that, in normal circumstances, a Modification Application could reasonably be expected to be also found to be substantially the same development as that approved by the original consent. In circumstances where the carwash facility on the site was constructed primarily pursuant to Modification Consent Nos. 10.2017.170.2 and 10.2017.170.3, those consents must play an important role in determining whether MOD/2022/0008 is substantially the same development." (SOFAC In Reply at p 9 par [1(a)])
3. The Applicant relies on the comparison of the use of the development, the comparison of the physical form of the development and the comparison of the operational characteristics of the development. Further, in relation to the proposed dogwash, the Applicant's case is that it is a minor structure, will draw most of its patronage from carwash customers and can be reasonably categorised as ancillary to the carwash facility and, in the circumstances, can be considered to represent substantially the same development as that approved by the consents. The Applicant submits in closing (Transcript 4 November 2022, p 169 at [35]) as follows: "The dog wash is really nothing more than a vending machine such as that which dispenses Coca Cola or ice or coffee. It looks like a vending machine. There's a picture of it in the acoustic reports. Dogs come in. People walk their dogs. People wash their dogs. People can walk their dogs through the service station. They can put them in a bucket, being the vending machine, chain it up and wash them with warm water and soap them and then wash it up. What's wrong with that? It's ancillary to the service station. Service station sells toilet paper. It sells coffees and it sells chips. What's wrong with washing a dog on the side of the site? We balance it in a sensible commercial but pragmatic way. It's a commercial operation. It's a conservative area, but we don't say, no dog washers in a heritage conversation area. It hasn't come to that. If you are going to operate a car wash and a service station, what's wrong with a reasonable extension, a reasonable modification, pragmatic, sensible? What about the roof structure, they say? That's an acoustic concern. That can be addressed. We will address that. If it's sensible, it can be addressed, but is it sensible to say, yes, but there's the potential for it to be not addressed acoustically. We haven't seen designs of a roof, and so not approved. Can't have it. Why would we restrict a business like that? Sometimes businesses can ask for more than they should be reasonably given, but the dog wash is not unreasonable as an ancillary use to the approved use. It's in keeping with the ice machine that it's next to, the ice fridge or the selling of firewood, so that's ancillary. It's in line with it, and if you are being sensible, then it is worthy of approval, but if you want to approach it in an unusual or strange way, then unusual and strange questions can be put, and that's what the council is doing, we say, so the dog wash is not an inappropriate modification, worthy of approval and should be approved."
4. The Respondent, in closing, observed that "it appears from the way that the application has been presented by the applicant that perhaps insufficient attention has been paid to the framework within which applications such as this are required to be evaluated." (Transcript 4 November 2022, p 175 at [13]) I agree with the Respondent's observation.

Legal principles that apply to the substantially the same test

1. I dealt with a similar contest between parties in a previous decision of 193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197 (Liverpool Road) where I noted at par [17] that "as there is substantial disagreement between the parties, I set out the legal principles before undertaking the assessment of whether the Proposed Modification is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified." . There is also significant evidence in the JER Town Planning (Ex 6) that "seemingly adopts a more historical position by reference to decisions of the Court of Appeal dealing with prior versions" of the provision in the EPA Act which provides the framework for modifications to development consents being s 4.55. (Transcript 4 November 2022, p 175 at [25])
2. The Applicant's expert Town Planner, Mr Coady relies on the Court of Appeal decision of North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 and the earlier decision of Michael Standley & Associates v North Sydney Council [1997] NSWLEC 190 (JER Town Planning at [35] and [36]). Unfortunately for Mr Coady, the legal principles set out in these decisions revolved around the previous s 102 of the EPA Act and the wording of s 4.55(2) has since updated and superseded the principle of comparing a proposed modification with the consent in its form current at the time of the modification application. The approach by Mr Coady is therefore erroneous and does not assist the Court.
3. I have also previously considered the legal principles and the application of s 4.55(2) of the EPA Act in Duke Developments Australia 4 Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1733 at [15] and [16] where I quote Pepper J from Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 ("Westlime"), extracted and reproduced below at [45], and I also refer to my earlier decision of Parseh Cronulla Pty Ltd v Sutherland Shire Council [2021] NSWLEC 1248 at [6] where I say as follows: "[6] … As to whether the modification substantially the same development as the development for which consent was originally granted, the power to modify a 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; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163). The result of the comparison between the original consent and consent as modified must be a finding that the development is "essentially" or "materially" the same as the approved development (Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (Moto); Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8; Arrage v Inner West Council [2019] NSWLEC 85). Both a qualitative and quantitative comparison is required (Moto)."
4. The starting point is with the terms of s 4.55(2) of the EPA which includes a jurisdictional prerequisite, or threshold test at s 4.55(2)(a) and I reproduce s 4.55(2) in full 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.
5. I include the legal principles I had summarised in Liverpool Road at [19] as follows: "a. The reference point for the test of substantially the same development is "the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)" (section 4.55(2) Scrap Reality at [16]); b. the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); c. the term "substantially" means "essentially or materially having the same essence" (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); d. to assess whether a consent is modified will be substantially the same development requires a comparison of the before and after situations. differences of the process of implementation which have environmental implications or differences in outcomes. e. in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); f. In relation to being satisfied as to the precondition of substantially the same development, the Court in Moto Projects found: - The comparative task requires both a quantitative as well as a qualitative appreciation of the differences. - The comparative task needs to be undertaken in a context, including the circumstances in which the original development consent was granted. - The comparative task needs to assess the physical features that are changed, but also the environmental impacts of the changes. - While the comparative task involves a comparison of the whole of the developments that are being compared, this should not operate to diminish a feature of the development which is important, material or essential. In these circumstances, a change to an important, material or essential feature of a development is likely to mean that the modified development is not substantially the same as the original consent. (Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280)"
6. Acting Commissioner Clay in Horseshoe Properties Pty Ltd v Tweed Shire Council [2021] NSWLEC 1507 ("Horseshoe Properties") helpfully provides a comprehensive summary of the various older and more recent authorities on how the "substantially the same" test is to be approached from paragraphs [27] to [43].
7. Importantly, the principles above, need to be considered with some caution in light of the more recent decision of Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85, which is instructive, and a reminder that the only "test" to be applied is that in the legislature and it is important not to substitute for the legislative test, one from case law. As his Honour observed at [18]: "The "test" the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act. Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31]."
8. As identified by Clay C in Horseshoe Properties at par [38] and [39], his Honour, made clear at [26] - [28] as follows: "26. The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. … 27. This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. 28. That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]." (Emphasis added)
9. His Honour had observed that if the comparative task was undertaken by the identification of the essential elements then: "25. ... the essential elements are not to be identified "from the circumstances of the grant of the development consent"; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development."
10. At [40] Preston CJ cautioned: "40. ... the Commissioner was not legally bound, by s 4.55(2)(a) of the EPA Act, to consider the circumstances in which the development consent was originally granted or the material or essential elements of the original development consent: neither are mandatory relevant matters, such that a failure to consider them is an error of law: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40."
11. The Appellant in Arrage also argued that the Commissioner erred by failing to consider the provisions of the relevant environmental planning instrument. Preston CJ said at [42] - [44]: "42. It is true that s 4.55(3) requires a consent authority to take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the modification application and that one of those matters is the applicable environmental planning instruments, which would include in this case MLEP. But that consideration occurs "in determining an application for modification of a consent" under s 4.55. This determination cannot occur unless and until the preconditions in s 4.55(2) have been satisfied, one of which is in s 4.55(2)(a) that the consent authority has formed the positive opinion of satisfaction 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)". The consent authority is therefore not bound by s 4.55(3) to consider the provisions of applicable environmental planning instruments at the stage of determining whether the precondition in s 4.55(2)(a) is met. 43. This is not to say that it would not be permissible for a consent authority to consider the provisions of applicable environmental planning instruments in determining whether the precondition in s 4.55(2)(a) is met, only that the consent authority is not bound in law to do so. There is a difference between a relevant matter that a repository of power is bound to consider and a permissible matter that the repository of power is entitled to consider. 44. In these circumstances, the Commissioner would not err on a question of law by not expressly considering the provisions of MLEP in determining whether he was satisfied of the precondition in s 4.55(2)(a) of the EPA Act." (Emphasis added)
12. I have also considered the principles as summarised earlier by Pepper J in Westlime in which at [173] her Honour said: "[173] The applicable legal principles governing the exercise of the power contained in s 96(2)(a) [now s 4.55(2)] of the EPAA may be stated as follows: (1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); (2) the modification power is beneficial and facultative (Michael Standley at 440); (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); (7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52])."
13. The Respondent also refers the Court to the decision of Hatch v Northern Beaches Council [2019] NSWLEC 1422 at [47] where Bindon AC provides the following 'distillation of the cases cited' in that matter as follows: "47. In order to determine whether or not the development as modified is "substantially the same" as the development originally approved, I am guided, amongst other things, by the following distillation of the cases cited: (1) The applicant seeking the modification bears the onus of satisfying the Court that the proposed development as modified will be substantially the same: see Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 (Vacik). (2) The fundamental test I am obliged in law to apply is found in the statutory provision of s 4.55(2)(a), and judicial decisions are not substitutes for the text of the legislation (Arrage). (3) The comparison required by s 4.55(2)(a) is between two developments: the development as modified and the development as originally approved Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342 (Scrap Realty) and the outcome of that comparison is that the two developments be "substantially the same". (4) The word 'substantially' in s 4.55(2)(a) has been held to mean "essentially or materially or having the same essence" (Vacik; North Sydney Council v Michael Standley & Associates Pty Ltd; and Moto Projects). (5) The "material and essential features" or a "material and essential physical element" are derived from judicial interpretations of the statutory test when considering the words "substantially the same" in s 4.55(2)(a): (Arrage). (6) This judicial interpretation "could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry" (Arrage at [27]). (7) If an inquiry into the material and essential features or elements is selected, then they are to be identified from the originally approved and modified development and not from the circumstances in which the original development consent was granted. (Arrage at [29]). (8) An inquiry into the material and essential features or elements involves both a quantitative and qualitative comparative assessment of the originally approved and modified developments (Moto Projects and Arrage). (9) I am not bound by s 4.55(3) to consider the provisions of applicable environmental planning instruments at the stage of determining whether the precondition in s 4.55(2)(a) is met, although that is not to say such a consideration would not be permissible. This is an example of a difference between a relevant matter that I am bound to consider and a permissible matter than I am entitled to consider: (Arrage at [43])."

Assessment of whether the Proposed Modification is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified.

1. Having set out the legal principles above, I now undertake the assessment of whether the Proposed Modification is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified.
2. Since the 'dot 1' consent in 2017 for a carwash service station a modification was made, referred to as the 'dot 2' modification which essentially reversed the traffic flow and orientation of the buildings and signage. Then there was the 'dot 3' consent which modified the driveway. The Applicant is seeking consent for the continued use of the service station and car wash as well as other modifications to the built form, layout and operations.
3. Development Consent 10.2017.170.1 was granted on 21 January 2018 for "Alterations and additions to existing service station to create a new extended building to provide a convenience store, new café and ancillary spaces, new single storey building to provide plant, amenities and staff room, a new car washing facility, car parking and associated signage". (SOFAC, p 2 at par [2.1], Ex 1). The following history from the SOFAC is not disputed: 1. The Original Consent included Condition B1 which required amendments, including reduction in the size of the pylon sign advertisement area, provision of bicycle spaces, deletion of terrace adjoining staff room, relocation of window to staff room and changes to colours and materials. 2. Condition H2 of the Original Consent permits a maximum of 8 staff. 3. Condition H4 of the Original Consent permits hours of operation of 7am - 6pm, seven days a week. 4. Condition H15 of the Original Consent required a minimum of 8 parking spaces be provided (it being noted the approved plans provided 16 spaces). 5. Modified Development Consent 10.2017.170.2 was granted on 20 November 2018. The modifications included a comprehensive redesign involving: 1. a different sized and dimensioned service station building in a different location, 2. reversal of the vehicular flow through the car wash "tunnel", 3. increase in height of the car wash "tunnel", 4. detaching the car wash "tunnel" and amenities building, such that it was two buildings, 5. changes to the size and design of the amenities building, 6. reduction of the number of parking spaces from 16 to 9, 7. provision of a 'wipe-down' area', 8. relocation of signage, 9. changes to landscaping, and 10. deletion of Condition B1. 1. Modified Development Consent 10.2017.170.3 was granted on 1 March 2019 for removal of a 3m wide section of the approved landscape strip to Kingston Street and construction of a new vehicular crossing. Modified Development Consent 10.2017.170.4 for extension of trading hours to 7pm daily was refused on 24 September 2019.
4. The expert evidence of the Town Planners Ms Gordon and Mr Coady is before the Court in the JER Town Planning and the oral evidence during the proceedings. They agree that the Court is unable to grant approval for unauthorised works by way of modification of a consent (JER Town Planning at 8(b)) and only the use of unauthorised works can be granted consent by way of the modification of a consent (JER Town Planning at 8(c)).
5. The approach by Mr Coady in the JER Town Planning (Ex 6), in which he invites comparison between the Proposed Modification and the modification which he refers to as 'dot 2', is one that the EPA Act explicitly does not require, rather, s 4.55(2) of the EPA Act requires the approach that has been taken by Ms Gordon. Mr Coady has not identified the quantitative and qualitative aspects of the Proposed Modification, and then compared them with the features of the original consent which he refers to as the 'dot 1' consent.
6. Mr Coady at [34] of the JER Town Planning states as per the SOFAC in Reply quoted above at [31] and adds: "If that is not the case, it could be considered to represent a retrospective reversal of Council's Determination to grant consent to those 2 modification applications."
7. Mr Coady relies on the decisions of Michael Standley (JER Town Planning pars [35], [36], [51(ii)] and [53]. Mr Coady then goes on to undertake an erroneous comparison exercise focusing on use (par [38] JER Town Planning), physical form (par [39]-[42] JER Town Planning) and operational characteristics (par [43]-[49] JER Town Planning) of the Proposed Modification compared with the "consent (as amended)". As I have already stated above, the conclusions reached by Mr Coady do not assist the Court for the purpose of s 4.55(2)(a) of the EPA Act.
8. Ms Gordon undertakes a quantitative and qualitative comparison as set out in her evidence in the JER Town Planning. The quantitative comparison appears at pars [16] and [17] which occupies pp 3 to 5. The qualitative comparison appears at pars [18] to [26], being pp 5 to 10.
9. Ms Gordon concludes at [21] of the JER Town Planning that whilst the comparison "shows that the Original and Modified Developments are both for a service station, carwash and café, it also shows that quantitively and qualitatively, the two developments are not substantially the same". Then at [24] and [25] Ms Gordon summarises as follows: "[24] The Modified Development is of a comprehensively different design and an increased scale and intensity. Additional facilities of a significant wipe down area shade structure with vacuums attached to the ceiling, a stand-alone vacuum and dog wash, a 7 hour a week increase in operation hours for the car wash and 50% increase in staff, to handle the increase in the intensity of the carwash use, are all proposed, in conjunction with … a significantly inferior landscaped setting. [25] The Modified Development is for a different design, location and height of structures on the site, with a different traffic flow direction through the carwash tunnel. The service station building is relocated substantially southward compared to the originally approved development, and has significantly different dimensions, a new roofed vacuum area is proposed to the north of it with a reduced setback from Kingston Street compared to the Original Development (service station building)."
10. The evidence given by Ms Gordon on the quantitative and qualitative measures are, effectively unchallenged in any cross-examination and I accept Ms Gordon's evidence.
11. Applicant submits in closing (Transcript 4 November 2022, p 170 at 25 regarding the A-frame structure that the Court should consider "whether it's an appropriate modification application or whether it requires a new DA" and correctly notes that both a quantitative and qualitative analysis is required. I am satisfied that Ms Gordon applied the right test in her analysis and asked the relevant questions for the purpose of s 4.55(2)(a) of the EPA Act.
12. The Applicant also submits that the purpose of the unauthorised works should be taken into account, "take, for example, a shade structure over workers. Why wasn't there one put there in the beginning? Idiot architect didn't design it, perhaps. You've got approval for a carwash and there are workers that are going to be drying off cars in the open air under the Australian sun. They have to be covered, so what about a sensible pragmatic approval for the pergola structure that's there? That works. It seems to be in keeping. Let's be serious here. Is that so offensive?" (Transcript 4 November 2022, p 170 at [15]) 1. The shade structure "is in keeping with a commercial premises. It's an appropriate, small - in relative size of the whole site - structure for workers that have a real purpose. Give them some shade. We were on that site for only a few minutes, and I got burnt. I'm still burnt, and imagine working there under that sun. You would want a pergola structure there. You'd want some structure there, and what's there, is it so objectionable? It's worthy of modification. It's worthy on its merits, and it ought to be approved." (p 171 at [35])
13. I have undertaken a comparison of the original approved plans, including the stamped approved Site Plan Drawing A1.01 Rev A dated 30 August 2017 (Ex 2, Tab 5, Folio 575), and the plans the subject of the Proposed Modification and they show significant differences: 1. The service station building has been shifted to the south-east; 2. The direction of vehicle travel for the car was has been reversed; 3. The A-frame tunnel is longer and higher than approved and the materials of the roof is different; 4. The pergola/shade structure together with the vacuum infrastructure is entirely new; 5. The new proposed dogwash; 6. The new proposed ice machine; 7. Landscaping is significantly reduced; and 8. Operational characteristics are substantially different

Fig 1 Site Plan Drawing A1.01 Rev A dated 30 August 2017 (Ex 2, Tab 5, Folio 575) Fig 2 Site Plan Drawing A1.01 Rev L dated 29 December 2021 (Ex B)

1. In determining an application to modify a development consent s 4.55(3) of the EPA Act requires a consent authority to take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the modification application. However, that consideration occurs "in determining an application for modification of a consent" under s 4.55 of the EPA Act. This determination cannot occur unless and until the preconditions in s 4.55(2) have been satisfied, one of which is in s 4.55(2)(a) that the consent authority has formed the positive opinion of satisfaction 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)". (Arrange at [42])
2. Having accepted the evidence of Ms Gordon and having undertaken a comparison myself of the plans I am unable to form the positive opinion that the Proposed Modification is substantially the same as the development for which consent was originally granted, and before that consent as originally granted was modified. I conclude that the Court is unable therefore to approve the Proposed Modification because it does not meet the jurisdictional prerequisite of s 4.55(2)(a) of the EPA Act.
3. It may be the case that upon assessment of the evidence before the Court as to the remaining merit contentions set out in the SOFAC regarding the visual impacts of the Proposed Modification on the heritage area and streetscape and regarding the acoustic impacts on the adjoining properties, an application development consent for alternations and additions may be appropriately granted subject to conditions of consent. I conclude that I do not have the jurisdiction to assess the merits of the Proposed Modification however I do observe that in the current application there may be insufficient information in order to undertake that assessment.
4. Accordingly, for the reasons set out in this judgment, the Proposed Modification cannot be approved.

Orders:

1. The Court orders: 1. The appeal is dismissed. 2. Modification Application No. MOD/2022/0008 seeking to modify Development Consent No. 10.2017.170.3 which was granted by the Respondent on 1 March 2019 at 95 Ramsay Street, Haberfield is not approved. 3. Exhibit 2 is returned and all other exhibits are retained.

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