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JUDGMENT:

• 3 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10663 of 2002 Lloyd J 13 February 2003 David Thomas Applicant v Pittwater Council Respondent JUDGMENT The question for determination 1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") against the deemed refusal of an application to modify a development consent. The question for determination is whether the development as sought to be modified would be substantially the same development as that for which the development consent was originally granted, as required by s 96. Background

2. On 15 June 2001 the respondent, Pittwater Council ("the council") granted development consent for alterations and additions to an existing dwelling house at No. 5 Mitchell Road, Palm Beach. This involved the excavation for and construction of a lower floor level, the demolition and replacement of certain internal and external walls, replacement of the roof, construction of terrace areas, and retention of the existing street façade. 3 On 10 December 2001 an application was made under s 96 of the EP&A Act to modify the consent to effect some minor changes to the design and which, for the present purposes are immaterial. 4 In February 2002 the whole of the main part of the house was demolished, including the flooring and internal walls which were to remain. Only a part of two external walls, one facing the street and the other at the side, remained standing and are presently supported by temporary steel framing. The council then ordered the work to stop, pending the submission of an amended application under s 96 of the EP& A Act to include the additional works that had been carried out. On 21 May 2002 the present application was made so as to modify the consent to include retrospectively the additional work that had been carried out. On 23 September 2002 the council refused the application because it did not satisfy the requirement under s 96 that the consent as modified would be substantially the same development as the development for which consent was originally granted. 5 The evidence suggests that difficulties were encountered in relation to the structural integrity of those parts of the building to be retained under the original development consent: extensive termite damage was found throughout all areas of the existing building. The project managers, Bellevarde Constructions Pty Ltd, furnished a report to the architect on 14 May 2002 which states (inter alia): I understand that both the ground floor and 1st floor frames were to remain but due to concerns of the structural integrity of these floors and construction difficulties of joining old to new it was resolved that we would have a far superior and longer lasting end product if they were to be replaced with new reinforced concrete floors. Further to this was the added concern of the unknown damage caused by termites, as they have been encountered by the clients on a number of occasions in the past. These concerns were realized as the internal linings were removed and the evidence of termites became quite obvious. Upon inspection it was clear that the termites had indeed infested numerous areas of the home, including the wall and floor frames. 6 The builder, James Taylor & Associates, furnished a report on 17 May 2002 which states (inter alia): We recognised that the architectural proposals implied the retention of a portion of flooring of the existing building that would: (a) lead to the excavation works, approved under the D.A. conditions, being arduous and dangerous to the workers directly beneath the retained flooring. and (b) imply that the existing joists, reported to us as termite damaged, would need to be retained and augmented. At the time of our early meetings in July/August 2001, the impracticability of this course of construction was discussed and there was general agreement that a concrete slab, finished in timber boarding as indicated in the D.A. drawings of Ian McKay, Architect, would provide a superior result. Certainly, it was recognised that it was futile to retain a timber flooring comprising boarding & joists where the boards were due to be replaced in any case, as these joists were both termite damaged and unsuited to their new span requirements. 7 These reports explain the reasons for the demolition of those parts of the building that were to be retained pursuant to the original development consent. The question remains, however, whether it can be said that what is now proposed by the application for modification is substantially the same development as that for which consent was originally granted. The Parties' Submissions 8 Mr A E Galasso, appearing for the council, submits that the reason why the change was made is irrelevant. The development consent that was granted was for alterations and additions to an existing building. The building to which the alterations and additions are to be made has been materially removed. By demolishing all of the floor structures and all of the internal walls, there is no longer something to be altered or added to. The present proposal is a completely new structure, with new concrete floors (in lieu of the previously existing timber floors) and the replacement of all internal timber walls with masonry walls. In Mr Galasso's submission it almost belies logic to say that what is now proposed amounts to alterations and additions to a dwelling house. 9 Mr J B Maston, appearing for the applicant, submits that the circumstances in which the consent was granted are relevant (referring to Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at 309 [56]). In the present case the development consent was granted on the mistaken supposition that the existing structure was sound. 10 Mr Maston submits that s 96 calls for a comparison between the consent as granted and the consent as proposed to be modified. In the present case the additional elements of the building that were removed are all internal: the external finished appearance of the building will not differ from that which was the subject of the development consent. The environmental impact of the modified development will remain the same. Neither has there been complete demolition - significant building elements have been retained. 11 The parties' respective experts have expressed similar views to these submissions. Mr J Swan, Development Planner of the council, states in his report: In my opinion it is nonsense to describe what is now proposed as "alterations and additions to an existing dwelling". A more apt description would be the construction of a new dwelling incorporating parts of two walls of the existing dwelling. The proposal should be considered as a new dwelling… 12 On the other hand, Mr P Strudwick, the applicant's town planner, considers that the development as proposed to be modified satisfies the "substantially the same development" test imposed by s 96 and can be approved. Conclusions 13 In Vacik Pty Ltd v Penrith City Council (NSWLEC, 24 February 1992, unreported) Stein J said: "In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations." 14 His Honour went on to say, however: In approaching the s 102 [now s 96] 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 for precisely the same use and accordingly is 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. 15 In Moto Projects (No. 2) Pty Ltd v North Sydney Council, Bignold J said (at 309 [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 the 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). 16 In applying what is said in these two cases I must accept the submission of Mr Maston that the circumstances in which the consent was granted are relevant. This suggests that I should not accept the submission of Mr Galasso that the reason why the change was made is irrelevant, particularly where, as here, there has been a change in the circumstances in which the consent was originally granted. The changed circumstances are these described in pars [5] and [6] above. 17 Acceptance of the fact that there were changed circumstances is not, however, determinative. The fundamental question remains whether the development as proposed to be modified can be said to be alterations and additions to an existing dwelling house. All that now remains of the existing dwelling house is part of the external wall facing the street and part of an external side wall, both of which are presently supported by temporary steel frames. It seems that nothing else of the former dwelling house remains. According to the evidence, only 14.5 per cent of the externally visible fabric of the original dwelling would be retained by the modified development. Although only 17 per cent of the externally visible fabric of the original dwelling was to be retained under the existing development consent, no part of the internal fabric of the original dwelling has been retained, whereas the development for which consent was granted retained the floor and certain internal walls. 18 In view of these facts I feel compelled to accept the view of Mr Swan and the submission of Mr Galasso that what is now proposed cannot be said to be alterations and additions to an existing dwelling house. Apart from the two sections of external walls which presently remain, the whole of the existing dwelling house has been demolished. There is almost nothing left to be altered or added to. The development as proposed to be modified amounts to a new dwelling which would incorporate token elements of the existing external walls. As I previously noted, the original development consent was for alterations and additions to an existing dwelling house. The development as proposed to be modified could not be so described. 19 Accordingly to the decision of Stein J in Vacik, the comparison must also include the way in which the development is to be carried out. In this respect the impact of the development as proposed to be modified would not necessarily be the same as the unmodified development. The construction methods for a new building, particularly the use of concrete and masonry in lieu of timber, may involve the use of construction methods and machinery which would have a different environmental impact. 20 I conclude, therefore, that the applicant has thus failed to discharge the onus of showing that the development as sought to be modified would be substantially the same development as that for which the development consent was originally granted. The applicant having failed to overcome this hurdle, one does not get to a consideration of the environmental impact of the modified development. This conclusion means that the Court does not have jurisdiction to grant the application.
3. The appropriate orders of the Court, therefore, are: (1) The appeal is dismissed. (2) The exhibits may be returned. I hereby certify that the preceding 21 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.