Tenacity Investments Pty Limited v Ku-ring-gai Council

Tenacity Investments Pty Limited v Ku-ring-gai Council - [2010] NSWLEC 1263 - NSWLEC 2010 case summary — Zoe

[20]

(1) A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the Court and subject to and in accordance with the regulations, modify the development 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 the consent was originally granted and before that consent as originally granted was modified (if at all), and 17 In Vasic Pty Limited v Penrith City Council (an unreported decision variously cited as being of the 18th or 24th February 1992), Stein J, when dealing with the meaning of the words substantially the same development (considering the then s102 of the Act) said that: In approaching the s102 assessment exercise one should not fall into the trap of saying that the development was for a certain use, extractive industry, and as amended it will be precisely the same use and accordingly and substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. 18 In Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, in the oft quoted passage at paras 55 and 56, Bignold J described process for consideration of proposed modification of development as follows: 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).

[25]

25 Although the plans that, by a series of overlays, permitted a comparison between the original 2006 approved development and that which would result if the present modification application were to be approved and added to the 2006 modifications, were shown to be inaccurate in a number of minor detail respects concerning the matters of modification of the nature described above, I do not consider that these inaccuracies could alter my acceptance of the council's conclusion that these modification elements, in the third class listed earlier, are of such little consequence in my consideration of the s 96AA(1)(a) test so that, in total, all the aspects of this element of the proposed modification could not contribute, in any way, to any adverse finding on the s 96AA(1)(a) test. 26 The second aspect of the modification application is the proposed insertion of an additional one bedroom adaptable living apartment in the south-western corner of the upper of the two basement levels of the apartment building. The ground level of this apartment, on its south-western aspect, will be approximately 200 mm, on the final revised version of the plans, above the existing ground level in this corner of the building. 27 For the purpose of my s 96AA(1)(a) assessment, it is not necessary to consider the issues that are raised by the council concerning whether the internal amenity of this apartment is acceptable or not. 28 However, the matter that is appropriate to be considered is the matter raised by the council, in its merit objection, of the creation of this apartment leading to an additional dwelling overlooking the private open space of Mr and Mrs Dobrijevic's dwelling immediately down slope - a private open space that is across the fence, some 6 m or so from the living area windows of this apartment and immediately adjacent to portion of the paved private open space area proposed to serve this apartment. 29 In this regard, although not a matter of merit assessment of the acceptability or otherwise of visual and acoustic privacy impacts on Mr and Mrs Dobrijevic's private open space or on their dwelling, in making a qualitative assessment of the extent of changes to the development that would result if this modification were to be approved, the mere existence of that additional overlooking and the proximity that would result for the private open spaces of the two properties is a qualitative change that requires to be considered as part of this assessment.

[72]

92 In addition, I have not taken any account of the fact that this apartment is intended to be an adaptable one and, as a one-bedroom apartment, is also regarded as being, if only in a local housing hierarchy sense rather than in any absolute sense, a contribution to affordable housing in the municipality. 93 Such an apartment, to be used by a person with a disability if its adaptability were to be utilised or, possibly, as a matter of social equity in its community, requires at least a reasonable degree of amenity (and perhaps a higher level of amenity) to be acceptable and thus to be able to be approved. However, I have not had regard to this possibly higher threshold as a consequence of the proposed adaptability of the apartment in reaching my conclusion that, on broad grounds of amenity, this proposed apartment is unacceptable and should be rejected (even if I am wrong on my section 96AA(1)(a) assessment and the proposed modification is capable of approval). Conclusion 94 I have concluded that, although an issue only raised by the objectors and not by the council, I cannot be satisfied that the proposed modified development, if approved, would be substantially the same development as the development originally approved by Roseth SC in 2006. As a consequence, I am satisfied that I do not have the power to approve this modification on the merits. 95 However, it if I were found to be wrong in this conclusion, on a merit assessment, I am satisfied that the proposed car park access ramp should be approved but that the proposed additional apartment, on the basis of its unacceptable amenity to its future residents, should be refused. 96 I have reached this latter conclusion without needing to determine any of the technical issues relating to height and storey controls that might be applicable to the proposal. Orders 97 The orders of the Court are: 1. The appeal is dismissed; 2. Application to modify the existing development consent for 2-4 Everton Street and 2 Pymble Avenue, Pymble, is refused; and 3. The exhibits are returned.

At a glance

Court

Decision date

Before

Source

Judgment (73 paragraphs)

Parties

Cases Cited (10)