Statutes Environmental Planning and Assessment Act 1979 s 96(2)

(formerly s 102)

* Howard Silvers Pty Ltd joined as party to notice motion 14 July 1998 as second respondent

OF NEW SOUTH WALES DECISION DATE: 2 October 1998

1. By notice of motion filed in the Court on 14 July 1998, the applicant applied to the Court for an order that development consent No. Z94.00602, granted by this Court in proceedings No. 10747 of 1994 (as varied by Order of this Court dated 7 July 1995), be modified in accordance with the application to modify consent filed in support of the notice of motion.

2. The application to modify consent refers to the following modification:-

3. To convert eight lots of retail outlets on ground level to residential apartments.

4. The application to modify consent was supported by a Statement of Environmental Effects dated 7 July 1998 and a set of plans.

5. At the hearing an amended set of plans upon which the applicant now relies was tendered and accepted as part of the evidence. The underlying purpose of the modification, namely to convert the eight lots to residential use, remains notwithstanding the amendments made to the plans between the date of the application and the hearing.

6. In a written judgment delivered in proceedings No 10747 of 1994 on 20 December 1994, I gave reasons for the grant of development consent to the construction of a nine storey residential flat building incorporating ninety five units, two basement levels of car parking for eighty eight spaces, ground level commercial uses for nine retail shops at 82 Mary Ann Street and along 13 - 43 Systrum Street, Pyrmont, subject to conditions.

7. By notice of motion filed 20 June 1995, George Cooney Holdings Ltd, the original applicant, made an application for modification of the consent and orders to that effect were made on 7 July 1995.

8. A second notice of motion seeking an order to modify the consent granted by the Court was filed on 14 June 1996. On 10 July 1996 the Court made an order that Howard Silvers Pty Ltd be joined as a second respondent to the proceedings. Joinder was on the basis that Howard Silvers Pty Ltd, as an objector to the original development application, claimed prejudice. The council did not propose to oppose the application to modify the consent on the ground that there would be any prejudice to the objector. The application for modification was discontinued on 7 August 1996.

9. A further notice of motion seeking modification of the consent by deletion of a condition was filed by the present applicant on 12 May 1997. A notice of discontinuance dated 26 May 1997 was filed on 29 May 1997.

10. A further notice of motion seeking modification was filed on 1 August 1997. In response to a notice of motion filed in Court on 2 September 1997, the Registrar joined Millinery House Pty Ltd, as third respondent, and Bradford Potter Pty Ltd, as fourth respondent, on 9 September 1997. The matter was set down for hearing over four days before me.

11. Yet a further notice of motion was filed on 2 October 1997 returnable on 16 October 1997. This notice of motion, on its face, made application to modify the consent in the same terms as the notice of motion filed in August, however, the Registrar noted on 16 October that the applicant was seeking to substitute the plans in support of the application.

12. On 21 November 1997 the Registrar refused an application by Howard Silvers Pty Ltd to vacate the December hearing dates. I refused to review the decision of the Registrar after a further hearing on 28 November 1997.

13. On 9 December 1997 Mr Preston appeared for the applicant and gave an undertaking to file a notice of discontinuance. I made an order formally dismissing the notice of motion set down for hearing on that day.

14. The applicant is now moving the Court by notice of motion filed on 14 July 1998. On the return date of the notice of motion it was stood over for callover on 10 September 1998. The applicant moved the Court for expedition by notice of motion dated 19 August 1998 which was heard on 25 August 1998. Mr Tomasetti appeared for Howard Silvers Pty Ltd on 25 August claiming on behalf of his client that it had been joined as a respondent and that the joinder applied to the current proceedings. The right of Mr Tomasetti's client to appear as a party was not formally recognised by the Court. However, orders were made facilitating the participation of Howard Silvers Pty Ltd at the hearing by requiring a filing of statement of issues and the filing and service of expert reports. The applicant and first respondent, while opposing its joinder as a party, indicated that they raised no objection to Mr Tomasetti's client appearing for the purpose of making submissions, cross examining witnesses and calling evidence.

15. The hearing proceeded on the latter basis although Mr Tomasetti maintained that his client was already a party to the proceedings and asked the Court to determine that it was. If not, he asked for an order that Howard Silvers Pty Ltd be joined as second respondent.

16. There was no appearance at the latest hearing by Millinery House Pty Ltd or on behalf of Bradford Potter Pty Ltd.

17. Mr Petersen appears for the council. Subject to the imposition of conditions submitted by the council and accepted by the applicant, the council leaves the question of whether the consent should be modified in accordance with the application to the discretion of the Court.

18. Howard Silvers Pty Ltd is the only contender against the modification of the consent.

19. There is no dispute that the application for modification is to be dealt with pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 following the amendments which came into force on 1 July 1998. The Court has proceeded on the basis that the approach adopted by the parties, including Howard Silvers Pty Ltd, in that respect is correct.

20. Mr Tomasetti's argument that once a party has been joined in class 1 proceedings it thereafter remains a party for all future purposes totally misrepresents, or at least misunderstands, the distinct nature of a determination in class 1 proceedings, whereby a development consent is granted, contrasted to the nature of subsequent proceedings, where an application is made to modify that consent pursuant to s 102 of the Environmental Planning and Assessment Act or now s 96(2) which is its successor.

21. The issues in the hearing of an appeal against the refusal of the original development application will not necessarily be the same as the issues raised by an application to modify the consent. The application for modification may nevertheless, coincidentally, raise the same issues, or at least some of them. An issue which is of particular concern to an objector to the original development application may have no relevance to the subsequent concerns which arise as issues when an application for modification is made.

22. Furthermore it is only as a matter of administrative convenience that the Court deals with the application for modification by accepting a notice of motion intituled in the original proceedings and by reactivating the same file. It does not matter whether the notice of motion moving the Court for orders that the original development application be modified is to be treated as new proceedings or as a further extension of the original proceedings for present purposes because Howard Silvers Pty Ltd was only ever joined to any proceedings in this Court for the purposes of dealing with an earlier application for modification of the original consent. That application has long since been discontinued.

23. At best, Mr Tomasetti's client was joined as a party to the specific application for modification of development consent which was current at the time of joinder. Each application for joinder needs to be considered on its merits and must have regard to the circumstances of each application which is then currently before the Court.

24. I am not satisfied therefore that Howard Silvers Pty Ltd is a party to the present proceedings as a consequence of the order made for its joinder as a party on 10 July 1996.

Whether the Objector should be joined as a Party

25. In the light of the council's response to the current notice of motion, it is apparent that Howard Silvers Pty Ltd is the only contender that either the application cannot be granted as a matter of law or that it should be refused on its merits. It is appropriate therefore that Howard Silvers Pty Ltd be recognised as a person whose joinder is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely adjudicated upon in the present proceedings. I make the formal order that Howard Silvers Pty Ltd be joined as a party to the proceedings as second respondent.

Whether it is Substantially the Same Development

26. Section 96(2) of the amended Act imposes the same prerequisite previously found in s 102 of the unamended Act, namely that the consent authority may modify the original consent if it is satisfied the development to which the consent as modified relates is substantially the same development. Lack of prejudice to an original objector however is no longer stated as a prerequisite to the grant of consent to an application for modification.

27. Mason P recognised in North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 97 LGERA 433 at 439 that a modified consent must, of necessity, be different in some respect to its predecessor. His Honour determined that in the context of s 102 "modify" means "to alter without radical transformation". Although his Honour was considering s 102 in a slightly different context, his finding and observations are nevertheless apposite to the present application.

28. Whereas the original consent determined that the applicant could develop the ground floor entirely for the purpose of retail outlets and access, it is now proposed that only one shop will be retained, namely shop J at the corner of Systrum Street and Mary Ann Street. In all other respects, the use and internal configuration of individual units on the ground floor will be radically changed. Not only so far as the configuration and use is concerned, but also in respect of the way the individual units relate to the street and the characterisation of the building within the terms of the streetscape.

29. It is not appropriate, in my opinion, to attempt to confine the consideration of the extent of changes to the context of the whole building, notwithstanding that the consent authority is required to consider the totality of the development as proposed for modification and to take into consideration such of the matters referred to in s 79C (formerly s 90) as are of relevance to that development. The focus may be on a critical element of a building which is to be the subject of change in order to determine whether the entire development is substantially the same development.

30. The fact that the changes are proposed at street level has a significant impact on the categorisation of the development. Whereas previously the development, when considered in the context of Systrum Street and Mary Ann Street, was relevantly partly a commercial development providing retail outlets at street level with residential accommodation above, that circumstance has changed so that only a very limited commercial presentation is made to the street. I am not satisfied that the development to which the consent as modified relates will be substantially the same development in those circumstances.

31. The original development has to be regarded in its entirety in all its respects and then it must be compared to the proposed development as modified in its entirety. All development has external and internal physical characteristics and is generally also categorised by a specific use or class of use. In the present case, the aesthetic or external appearance of the building will change at a significant point, namely at street level. The characterisation of the use at that level will undergo radical change. Not only will the proposed alteration create a substantial change to the identity of the class of occupiers of the first level of the building, but the external presentation of the building at that most critical focal point will be entirely different.

32. The above finding effectively determines the proceedings, as a necessary prerequisite set by s 96(2), cannot be satisfied.

33. Mr Tomasetti raised a number of merit issues with the predominant one being that the accommodation provided within the proposed residential units was inadequate and unsatisfactory, notwithstanding that it was to be used for affordable housing. Another issue was that the applicant appears to be foreshadowing that further amendments will be required in order to bring the subsequent building approval granted by the council into conformity with the original development consent. The latter is not an issue which arises in the present proceedings.

34. Having heard the evidence regarding the amenity of the proposed residential units, it is appropriate to observe that Howard Silvers Pty Ltd has not made out a case which would justify the refusal of the application on that merit ground. However, this should not be accepted as a finding which precludes a further consideration of those issues if the applicant seeks to pursue them by another means.

35. Notwithstanding the support of the council, the Court is of the opinion that it does not have the power to modify the consent in circumstances where it has not been satisfied that the development to which the consent as modified relates is substantially the same development. It follows therefore that the application must be refused. This may well have been the case even if Howard Silvers Pty Ltd had not intervened. However, the Court has been assisted by the evidence and submissions presented on its behalf. It was nevertheless necessary for the company to be a party to ensure that the fundamental contention that the proposed modification of the consent would be contrary to law was raised and adjudicated upon.

36. The application to modify the consent is refused.

1. Howard Silvers Pty Ltd is joined as a party to the notice of motion dated 14 July 1998 as the second respondent.

2. Application to modify development consent granted by this Court on 20 December 1994 to convert eight lots of retail outlets on ground level to residential apartments is refused.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 9 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE R N TALBOT