Stavrides v Canada Bay City Council

Thomas v Pittwater Council [2003] NSWLEC 19; CASES CITED: Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] LGERA 298, [1999] NSWLEC 280; Vacik Pty Ltd v Penrith City Council, NSWLEC, Stein J, 24 February 1992, unreported

APPLICANT Mr T Robertson SC SOLICITORS Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT Mr P Jackson, solicitor SOLICITORS Pike Pike & Fenwick

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10117 of 2007 Angie Stavrides v Canada Bay City Council

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Canada Bay City Council (the council) of an application to modify Development Application No 338/2004 (the original approval) under s 96(1A)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act). The original approval provided for alterations and additions to an existing dwelling at 3 Tingara Lane, Cabarita (the site).

2 The development application describes the proposal as "remodel existing single storey residence and the addition of a second storey". The Statement of Environmental Effects accompanying the development application relevantly states, in part, at cl 3.3:

The existing residence was engineered to accommodate a second storey in the future. The concrete raft and pier slab, and the external masonry walls have been designed to support a second storey addition. The proposed redevelopment aims to maintain the current floor slab and a substantial portion of the external walls as part of the redesign of the ground floor. 3 The council's Notice of Determination describes the proposed development as "alterations and additions to an existing dwelling including erection of an additional level of accommodation, construction of a swimming pool and associated demolition works".

4 The modification application proposes to: + correct the position of a wall return in the part of the dwelling which was to be retained on the site; and + seek approval for the demolition and reconstruction of several masonry walls in the part of the dwelling, which were to be retained. 5 Work has commenced on the site and the walls referred to in the modification application to be retained have been demolished. The concrete floor slab and supporting walls and some services remain on site.

6 The sole issue between the parties is whether the requirement in s96(1A)(b) of the EPA Act is satisfied i.e., whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. 7 The following residents provided evidence on site: + Mr Brian Jones of 37 Dorking Road, + Mr P Nigro of 1 Tingara Lane, and + Mr Niel Garbutt of 39 Dorking Road. 8 Their concerns relate to the inadequacy of the plans, the breach of the conditions of consent requiring retention of some walls, the removal of the walls without approval and the applicant's reluctance not to submit a new development application.

9 Mr Jackson, for the council submits that the proposed modification results in a development that is not substantially the same as that originally approved. As the Notice of Determination describes the development as "alterations and additions to an existing dwelling" Mr Jackson submits that as the dwelling has already been demolished and there are no structures on site (excluding the slab and associated works) the consent cannot relate to an "existing" dwelling therefore the modification cannot be substantially the same as that originally approved. To support this submission Mr Jackson relies on the findings in Thomas v Pittwater Council [2003] NSWLEC 19.

10 Mr Geoff Goodyer, a consultant town planner, provided an independent report for the council. He states that the development is not substantially the same as that originally approved because the original approval proposed demolition of only some of the external walls and the retention of some 22.7 m or 32.6% of the walls. This needs to be compared to the modification application that proposes the demolition of all external walls and internal walls proposed to be retained by the original approval. 11 Mr Robertson SC, for the applicant comes the opposite conclusion to Mr Jackson. He submits that the modification is substantially the same as that originally approved for a number of reasons. Firstly, he submits that the council's reliance on the walls shown to be retained as part of development consent are open to interpretation because of the inconsistency between the details on the plans and written documentation. There is some doubt that the walls marked with a solid line are the walls to be retained and also whether these walls coincide with the walls shown on the dwelling as proposed. Notwithstanding this and while not accepting the council's position that the area shown on the approved plans by a solid line represents the walls to be retained, Mr Robertson SC did not press this particular submission.

12 Secondly, Mr Robertson SC submits that the removal of the walls was authorised by condition 74 of the consent. This condition requires all building work to be carried out in accordance with the requirements of the Building Code of Australia (BCA). The applicant has provided a structural engineers report (in relation to the walls proposed to be retained) from Rafeletos and Zanuttini that, in part, states:

The walls did exhibit swaying and cracking, and in our opinion their structural integrity has been compromised

We believe for safety and structural reasons that walls be removed and reconstructed during the new building works. 13 Thirdly, Mr Robertson SC submits that the removal of the existing garage wall (that is argued by Mr Jackson is to be retained) is implicit in the approval as it is necessary for this wall to be removed to allow access for the demolition equipment to the majority of the site. This access is to allow the demolition allowed by the development consent.

14 Fourthly, Mr Robertson SC submits that the level of change is minor and does not result in any change to the approved building form. The replacement of the existing walls with new walls of similar dimensions raises no new issues. A finding that the proposed modification is substantially the same as that originally approved use is well within the established law in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] LGERA 298, [1999] NSWLEC 280 and Vacik Pty Ltd v Penrith City Council, NSWLEC, Stein J, 24 February 1992, unreported.

15 In considering the opposing submissions, I accept the conclusions reached by Mr Robertson SC after considering the modification application in light of the comments in Moto Projects and Vacik.

16 Moto Projects relevantly states (at pars 54 to 56): 54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted) . 17 Vacik relevantly states, in part (at par 8): Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion that "substantially" when used in this section means essentially or materially or having the same essence.

18 I am satisfied that a comparison between the development, as currently approved, and the development as proposed to be modified will be "essentially or materially"" the same as the approved development for a number of reasons. These are: + the proposed use does not change, + the external building envelope and volume is identical to the original approval, + the internal configuration is identical to the original approval, + the walls to be replaced have no special significance, + the new walls are generally in the same location as those demolished, + the safety and structural reasons for the removal of the walls was not challenged, + there was no suggestion that the retention of the walls was a fundamental consideration of the development application and that a different decision would have been reached if the walls were always proposed to be removed, and + the new walls do not impose any additional amenity impacts on adjoining properties. 19 In Thomas, consent was granted for alterations and additions an existing dwelling however the whole of the main part of the house was demolished including the floor and internal walls that were shown to be retained on the approval. Clearly, the demolition of the parts of this dwelling shown on the approval to be retained were more extensive than in this case. Moto Projects requires a qualitative and qualitative assessment in any comparison between the development, as currently approved, and the development as proposed to be modified. In my view, the circumstances in Thomas can be clearly distinguished from the circumstances in this case, particularly considering those matters in par 18.

20 I do not accept Mr Jackson's submission that the findings in Thomas effectively prohibit the Court from a finding that the modification is not substantially the same as the original approval because of the demolition already undertaken. I agree with Mr Robertson SC that the provisions of s 96(1A)(a) provide for the modification of an existing development consent and not necessarily what exists on the site at the time of the consideration of the modification application. In any event, it may be argued that there is an existing dwelling on site even if only in the form of a concrete slab and services. 21 Similarly, the conclusions of Mr Goodyer must be rejected based on the limited scope of his assessment compared to the broad consideration suggested in Moto Projects.

22 Having found that the jurisdictional test in s 96(1A)(b) of the EPA Act is satisfied it is not necessary to deal with the other two submissions of Mr Robertson SC however I make the following comments for completeness. I am not convinced that the removal of the walls can be seen to be authorised by condition 74 of the consent without amendment to the plans or conditions of approval. Similarly, I am not convinced that the removal of the existing garage wall is implicit in the approval on the basis of allowing access for demolition equipment to the majority of the site.

23 In my view, these two submissions would not support a finding that the modification is substantially the same as the original approval.

24 The council's conditions are identical to the original consent with the exception of the relevant plan numbers in condition 1 that identified the new walls. 25 The Orders of the Court are: 1) The appeal is upheld. 2) Development Application No 338/2004 for alterations and additions to an existing dwelling at 3 Tingara Lane, Cabarita is modified in the manner set out in Annexure A. 3) The exhibits are returned with the exception of exhibits 1, 2 and 5. ____________ G T Brown Commissioner of the Court

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