Tipalea Watson Pty Ltd v Ku-Ring-Gai Council

When filing the present proceedings on 14 August 2003, the Applicant by Notice of Motion sought, inter alia, the Court's determination as a preliminary matter of the following question:

Is the development to which the consent as modified relates substantially the same development as the development for which consent was originally granted?

That question comes before me for determination as a preliminary matter in advance of any hearing on the planning merits that may hereafter be required.

It will be readily appreciated that the question raised by the Applicant puts in issue the first of the grounds stated by the Council for refusing the Applicant's modification application. (It appears that the Council has not determined the modification application on the planning merits in view of the first stated ground for its determination.)

The question thus raised reflects the statutory pre-condition expressed in paragraph (a) to the EP&A Act, s 96(2) which confers upon a consent authority the relevant power to modify a development consent. However, it is to be noted that the statutory precondition is expressed in terms of the consent authority being "satisfied" that the development as modified is substantially the same as the development for which development consent was originally granted. Accordingly, although the question raised has been framed as a question of fact, that question is properly to be understood as raising the question of "the satisfaction" of the consent authority as to that fact, and in the context of the present proceedings it is the question of the satisfaction of this Court that is relevant by virtue of the operation of the Land and Environment Court Act 1979, s 39(2). B. THE STATUTORY MODIFICATION POWER

The EP&A Act, s 96 confers upon a consent authority express power to modify a development consent in three separate circumstances, namely - (i) "to correct a minor error, misdescription or miscalculation": vide subs (1); (ii) "where the proposed modification is of minimal environmental impact": vide subs (1A); and (iii) in respect of "other modifications" (ie other than those modifications provided for in subsections (1) and (1A): vide subs (2).

The power relevantly invoked by the Applicant in the present case is that conferred by s 96(2) which is in the following terms: 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 5) 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 under section 72 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.

The exercise of that modification power is governed by subs (3) and 4) which also shed light on the nature and scope of that power. They provide as follows: (3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

The statutory modification power conferred by s 96(2) essentially re-enacts the repealed s 102 of the Act which section had been the subject of considerable judicial exposition, most authoritatively by the Court of Appeal in North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97LGERA 433 in the judgment of Mason P (with which Sheppard AJA concurred).

Having stated that in its context in s 102(1) the verb modify means to alter without radical transformation: see Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414 at 421, Mason P, in the following passage at 439/440 discusses the scope of the statutory power of modification: When first enacted, s 102 reversed the earlier understanding of the law which held that a development application could not be recalled or varied after issuance: see Kirribilli Ex-Service Club Ltd v North Sydney Municipal Council (1964) 11 LGRA 76 at 79-80; Benalup Holdings Pty Ltd v Lismore City Council (at 259). The original form of s 102, enacted in 1979, confined the power of modification to details of the consent, but the words details of were removed in 1985 in response to the majority decision in Sydney City Council v Ilenace Pty Ltd. This amendment was obviously intended to enlarge the power to some degree. The meaning of substantially the same development is discussed by Stein J in Vacik Pty Ltd v Penrith City Council (unreported, Land and Environment Court of New South Wales, Stein J, 24 February 1992) in terms with which I respectfully agree. Parliament has therefore made it plain that a consent is not set in concrete. It has chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity. The consent authority can withhold its approval for unsuitable applications even if the threshold of subs (1) is passed. I agree with Bignold J in Houlton v Woollahra Municipal Council who (at 203) described the power conferred by s 102 as beneficial and facultative. The risk of abuse is circumscribed by a number of factors. Paragraphs (a), (b) and (c) of subs (1) provide narrow gateways through which those who invoke the power must first proceed. Subsection (1A) and subs (2) ensure that proper notice is given to persons having a proper interest in the modified development. And there is nothing to stop public consultation by a council if it thinks that this would aid it in its decision-making referable to modification. Finally, subs (3A), coupled with the consent authority's discretion to withhold consent, tend to ensure that modifications will not be enterprised, nor taken in hand, unadvisedly, lightly or wantonly. Naturally some modifications will be controversial, but decision-making under this Act is no stranger to controversy.

I should note that par (b) of s 102(1) requiring that there be no prejudice to original objectors, was not included in the re-enacted s 96(1A) and s 96(2).

His Honour's adoption of the decision of Stein J in Vacik Pty Ltd v Penrith City Council (unreported 24 February 1992) as to the meaning of substantially the same development needs to be further noted. In Vacik, Stein J had said: Turning to the issue of s.102(1)(a). Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion substantially when used in the section means essentially or materially or having the same essence.

In Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 I made the following observations in respect of s 96(2)(a): 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. 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. 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)..

Two other relevant observations that were made in Moto Projects were -

(i) the environmental impacts of proposed modifications are relevant to the ultimate factual finding based upon the comparison of the development as modified and the development as originally approved (see at par 62); and

(ii) whereas the required comparison is in respect of the whole of the developments being compared a particular feature of the originally approved development may be found to be important, material or essential to the result of the required comparison (see at par 64). C. THE COMPETING CASES

In advancing their competing cases, the parties have relied upon expert evidence (in affidavit form) respectively supporting the competing cases but have agreed that the experts would not be cross-examined because little benefit was anticipated from that process. Moreover, it appears to have been accepted by the parties that no good purpose was likely to be yielded by a joint conference of the experts because their affidavits had fully disclosed the bases for their competing opinions and there did not appear to be any dispute as to the true nature of the proposed modifications to the originally approved development.

In so proceeding, the parties expressly acknowledged that the required factual decision would be made by the Court with whatever assistance that it obtained from the expert opinions upon the commonly assumed basis that the required factual decision would not be yielded simply by the Court preferring the ultimate opinion of one expert over the other expert. 20. Rather, the parties tendered the relevant documents - namely (i) the development application; (ii) the development consent; (iii) the modification application; and (iv) plans and other graphic materials to assist in the required task of comparing the development as originally approved and as modified - upon which materials the Court would make its ultimate finding on the required statutory comparison.

In advancing their competing cases, the parties commonly accepted that the decided cases had expounded the true nature of the statutory modification power and the proper approach to be adopted in determining whether in a given case the pre-condition created by the EP&A Act, par (a) of s 96(2) was or was not satisfied.

The only additional facet of the application of s 96(2)(a) raised by the present case (not discussed in the decided cases) concerns the ascertainment of the true nature and scope of the development, the subject of the original development consent in circumstances (such as in the present case) where that development consent has imposed conditions which require or contemplate some change to be made to the development, the subject of the development application, which was granted conditional consent.

In this respect, it is to be noted that the conditions imposed upon the grant of the development consent included the following: 71. The proposed development is to be compliant with both AS 1428 (Design for Access and Mobility) and AS4299 (Adaptable Housing). 94. In accordance with the provisions of Clause 13A(6) of SEPP No. 5 all parking spaces shall have the following dimensions: · 6 metres by 3.2 metres · End parking spaces located in a blind alley Revised plans indicating the above modifications shall be submitted to the Principal Certifying Authority. 95. Unit 1 and 7 does not have adequate doorway circulation space on the internal approach side of the front entry door. Revised plans are to be submitted to the Principal Certifying Authority indicating compliance with Clause 13A (2)(d) of SEPP 5. 96. In Units 2 and 3 the hallway outside the toilet shall have a circulation space of not less than 1.2 metres. Revised plans are to be submitted to the Principal Certifying Authority indicating these changes.

The expert opinion relied upon by the Applicant is that contained in the affidavit of Mr Lindsay Fletcher sworn 1 September 2003.

Annexure "B" to that affidavit comprises documentary materials which include Mr Fletcher's "summary of changes" proposed by the s 96 modification application which are in the following tabulated terms: Reason requiring Changes Changes Reference

· To comply with the requirements of SEPP5. Condition 95 and 96 requested internal layout - changes have been made. 1. Changes required by Conditions of Consent · Carpark configuration changed to comply with Condition 94 and SEPP 5 dimensions

Sheet 2 Sheet 3

· New separate access basement stair and provisions of lift to each house. Consequential change in location of internal and external walls. 2. Improving Aging in Place · Increased the capability for Adaptability under SEPP5 from one house to all ten houses Outcome: Previous DA 1 House adaptable. After s96, ALL houses capable of being adaptable Sheet 5

Sheet 2 · All bedrooms and family rooms have been oriented north (Houses 7-10 changed). · House 7 axis oriented north and away from Mona Vale Road. 3. Improving Solar orientation Outcome: Sheet 5 Previous DA not all bedrooms and family rooms had access to northerly aspect. Sheet 3 After s 96 ALL bedrooms and ALL family rooms will have access to northerly aspect. Improved internal amenity · The dormers in the roof have been simplified generally into one large dormer or into a gable end. 4. External Appearance · All Glazed timber doors and windows on the ground floor are unchanged, except that they may have relocated slightly in each elevation. Sheet 4 · Rendered surfaces on upper levels changed to cladding. · Note original plans hand drawn, s96 plan computer printed. 5. Correction of Errors in Conditions of Development Consent · Condition 103:P Correction of Error in Condition Attached Conditions Aging in place agreement with provider, change timing from: "prior to construction to prior to occupation RELEVANT COMPARISON IS BETWEEN APPROVED PLANS AS AMENDED BY CONDITIONS OF CONSENT WITH THE MAY PLANS

· the number of dwellings is the same; · the number of bedrooms is the same; · the gross floor area is the same; · the height in storeys is the same; · the height above natural ground is essentially the same; · the roof ridge lines are similar; Other Factors NOT changing · the roof pitch is similar; - ALL UNCHANGED · the overall mass and volume of the development is generally the same; · the overall siting and grouping of the houses is generally the same, noting that House 7 is changed; · the materials proposed are generally the same, noting that the upper level cladding is changed; · the location of the carpark entry is the same; · the impacts on neighbours is generally the same or improved; · the proposed residential nature of use is unchanged.

The reference to "sheets" in the table is to various plans and graphics prepared by Mr Fletcher (Exhibit 2).

In paragraphs 8 and 9 of his affidavit Mr Fletcher expresses the opinions that the development proposed to be modified is "substantially", "essentially", or "materially" the same development as the development as originally approved.

His reasons for these opinions are stated in paragraphs 10, 11 and 12 of his affidavit as follows: 10. I have formed my opinion taking into account the following: (a) the number of dwellings is the same; (b) the number of bedrooms is the same; (c) the gross floor area is the same; (d) the height in storeys is the same; (e) the height above natural ground is essentially the same; (f) the roof ridge lines are similar; (g) the roof pitch is similar; (h) the overall mass and volume of the development is generally the same; (i) the overall siting and grouping of the houses is generally the same, noting that House 7 is changed; (j) the materials proposed are generally the same, noting that the upper level cladding is changed; (k) the location of the carpark entry is the same; (l) the impacts on neighbours is generally the same or improved; (m) the proposed residential nature of use is unchanged. 11. I note that the main differences from the Consent plans as amended by the Conditions are: (a) The addition of access stairs and lifts to the basement providing separate and improved access to the dwellings; (b) There is no significant change to the relationship to adjoining properties; (c) There are no averse amenity impacts on neighbours from the changes, ie overshadowing, aural or visual privacy, traffic generation or access points; and (d) There is no significant change to the streetscape; 12. In my opinion these differences do not change the essential characteristics of the approved development because: (a) There is no significant change to the nature or intensity of the residential use; (b) There is no significant change to the relationship to adjoining properties (c) There are no adverse amenity impacts on neighbours from the changes, ie overshadowing, aural or visual privacy, traffic generation or access points; (d) There is no significant change to the streetscape; and (e) The modifications don't change the scale or character of the development, nor do they change the character of the locality.

The competing expert opinions relied upon by the Council are contained in the affidavits of Ms Rachel Josey sworn 24 September 2003 and Ms Katharine Hawken sworn 22 September 2003.

In paragraph 6 of her affidavit, Ms Josey opines that the proposed modifications would result in a "substantially different development" from that approved by the development consent even though the modified development would, in common with the originally approved development, be classified as "10 x SEPP5 dwellings generally configured in 4 x 2 storey blocks". Her opinion which is particularised and/or amplified by her further opinions expressed in par 7 of her affidavit ("the modifications would result in the development having significantly different architectural appearance and character…the modifications would have a different presentation to the street and to neighbouring properties") is based upon the following matters (enunciated in par 6 of her affidavit which I have paraphrased in abbreviated form):

(a) the changes to the external appearance of each dwelling and of the development as a whole including:

(i) considerably different footprint, layout and architectural design; (ii) significant changes to the shape and appearance of the roof lines; (iii) changes to the location and size of glazed areas and doors at both ground and first floor levels;

(b) the re-orientation and changed footprint of the stand alone dwelling (Unit 7).

(c) the set back from Killeaton Street of Block A being reduced from 17 to 14 metres;

(d) changes in pedestrian access arrangements for Block C;

(f) the provision of basement stairway and lift access to each of the dwellings; and

(g) significant extension of the underground basement carpark.

Ms Hawken's opinions are confined to the proposed modifications to the basement carparking. They are as follows:

(i) the amended basement carpark layout is significantly different from the original layout;

(ii) the additional basement area, through providing the space for a layout that complies with the requirements of Condition 94 of the development consent, is caused by the Applicant's desire to accommodate additional storage areas, lifts, stairwells to the individual dwellings and direct access to the free-standing dwelling (Unit 7); and

(iii) the requirements of Condition 94 could have been complied with by a different layout arrangement involving a considerably smaller extension to the basement area than that proposed by the modification application. D. CONCLUSIONS

The nature and scope of the modified development are not in dispute and are fully revealed in the relevant plans. What is fully depicted in the relevant plans does not require any verbal formulation or exposition. However, there remains some doubt as to the precise nature and scope of the approved development by virtue of the effect on that development of the relevant conditions of the development consent that I have recited (see par 23).

My evaluation of the competing expert evidence leads me to the conclusion that the effect on the nature and description of approved development, of Conditions 71, 94, 95 and 96 of the development consent, has been somewhat overstated by Mr Fletcher and conversely has been somewhat understated by Ms Josey in the context of their respective appraisals of the modification application.

This conclusion does not seriously undermine their competing opinions, but it means that in undertaking the required comparison, some recognition must be given to the fact that the nature, scope and description of the approved development is necessarily modified in order to give effect to the relevant conditions. However, it is not possible on the evidence for the Court to precisely identify the modifying effects on the approved development of the relevant conditions, other than to say that they have made some contribution to the need for the overall modifications proposed by the Applicant. However, I do not think that the doubt is otherwise to be satisfactorily resolved by the Council's submission that the Applicant who invokes s 96(2) has the onus of establishing the relevant effect of the conditions on the approved development, so that the requisite statutory comparison can be meaningfully undertaken. I think that it is sufficient to conclude, as I do, that the nature and description of the approved development necessarily involves some flexibility in matters of design which are referable to the relevant conditions, but this result does not preclude the undertaking of a meaningful comparison as required by s 96(2)(a).

Nor am I able to accept the Council's submission that the effect of the relevant conditions is not relevant to s 96 because whatever be the effect on the approved development, it derives exclusively from the fact that the conditions were imposed on the grant of the development consent. The Council's submission that the effect of the relevant conditions does not need to be implemented by a s 96 application is in one sense doubtless correct. But it does not follow that the effect of the relevant conditions has no relevance to a s 96 application. Rather, for the reasons I have given, the effect of the relevant conditions is relevant to the extent that that effect necessarily modifies the development for which development consent was sought.

It is my evaluation that the key difference underlying the competing opinions of Mr Fletcher and Ms Josey concerns their respective appraisals of the effect of the proposed modifications on the external appearance of the development. Mr Fletcher's appraisal was that the dormer windows in the roof of the buildings had been simplified generally by being changed into one large dormer or a gable roof end. He considered the roof ridge lines and roof pitches to be similar. Ms Josey considered the overall changes to result in a "significantly different architectural appearance and character" of the development offering a "different presentation" to the streetscape and neighbouring properties.

My appraisal of the documentary materials leads me to the conclusion that the modifications do not result in a development that is significantly different in terms of architectural appearance and character from the originally approved development.

No doubt the modified development will create some changes in the external appearance of the approved development but such changes could not be said to create more than "modifications" to the originally approved development. That is they represent changes to the external appearance that do not radically transform the originally approved development. This is especially so in the context of the elements of the approved development that are not changed by the modifications which elements are enumerated in Mr Fletcher's "summary of changes" tabulated document that I have earlier quoted (see par 25).

It is important to note that there is no evidence in this case that any of the features of the external architectural appearance or character of the approved development that are to be modified was a particularly important, material or essential feature of the development as originally approved, such that its elimination (or modification) would justify a finding, such as was made in Moto Projects, that the development as modified, was on that account, not substantially the same development as originally approved.

This is not to gainsay that the external design and appearance of a new development is invariably a matter of interest for environmental planning or that the external design and appearance of a development is an intrinsic element of a development that manifests itself physically. However, and to state the obvious, the external appearance of a development is but one feature of the development considered as a whole entity.

It is also of some significance that the Council's expert evidence has not attempted to rebut the Applicant's case that a principal object or effect of the proposed modifications is to enhance the particular features of the approved development that will promote the use and enjoyment by older or disabled persons of housing development eg accessibility, adaptability, solar access etc. These matters are included in the range of matters the subject of development standards and design requirements imposed by SEPP 5.

The fact that the approved development comprises SEPP 5 housing and the fact that a number of the modifications are intended to enhance the proposed housing in the interests of older or disabled persons are, in my opinion, of relevance to the qualitative comparison of the originally approved development and the modified development: see Moto Projects. This of course, is not to say that there are no limits to the extent of modifications that may be made to a SEPP 5 approved development provided that the modifications are designed to enhance such housing in the interests of older or disabled persons. It is simply to recognise that the approved development provides a special type of housing for a selective group of persons and that fact is relevant to the required comparison especially in terms of a qualitative comparison, together with the fact that the modifications are designed to enhance that special type of housing.

This last mentioned matter is of relevance to the Council's particular reliance upon the fact that the modification involves a greater increase to the basement space than was required by the need to simply comply with Condition 94. But the Applicant has not attempted to conceal the obvious fact that the additional basement space certainly has been deployed in the proposed modification to improve access arrangements between the basement and the individual dwellings and in so doing has enabled all 10 dwellings to become more readily accessible and potentially "adaptable housing" in terms of SEPP 5 (compared with the one dwelling comprising adaptable housing in the originally approved development).

My ultimate finding based upon an overall comparison of the originally approved development and the development as modified is that the two developments are substantially the same. In making this finding, I have considered all of the documentary evidence and have found Mr Fletcher's plans and graphics (Exhibit 2) to be particularly instructive.

Accordingly, the question raised by the Applicant's Notice of Motion is answered in the affirmative.

For all the foregoing reasons, I make the following orders -

1. The Applicant's preliminary question be answered in the affirmative. 2. The proceedings be stood over to the Registrar's callover on Wednesday 29 October 2003. 3. Exhibits (other than Exhibit 1) be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.