Van Mourik v Mosman Municipal Council [2023] NSWLEC 1599 | Case summary

Land and Environment Court (NSW)|2023-07-20

The Applicant's Planner, Georgia Sedgmen (GS) submissions: (Ex 3, paras [48] - [56]) "48. GS takes the view that there will be negligible visual impact as a consequence of the relocated garage door, given the distance the door is located from the rear boundary, the subject view being from a rear lane that is dominated by garage doors, the large masonry rear wall approved as part of the development, the proposed solid electric gate proposed, and the mature landscape screening proposed. GS is of the opinion that any view from the rear lane to the rear of the dwelling and relocated garage door will be fleeting and only available at times when the rear gate is opened to allow access for a motor vehicle to the dwelling. 49. GS takes the view that whilst the modified development proposes to relocate the garage door, it does not materially alter an essential element of the approved development. The relocated garage door does not give rise to any adverse impacts and is limited to a small portion of the rear façade of the dwelling, located at the lower ground level. The garage door will result in no impact the development as viewed from the primary street frontage at Middle Head Road. As noted above the proposed garage door relocation is considered by GS to be almost imperceptible from the rear lane, other than during brief periods when the gate to the rear lane is opened to allow a car to exit. However, it is likely that, at a time when the gate is opened, a car will be located within the driveway and obscuring the view to the garage door, which may be open at that time and appear as an under croft. 50. GS takes the view that the deletion of Condition 93 of the s8.2 approval does not fundamentally alter the development from that which was approved. 51. GS notes Condition 93 provides: "The areas shown as 'undercroft' on Drawing No. DA201 (Rev C, dated 5 June 2020) must be kept open and must not be enclosed at any time. It is for the use of turning vehicles and is not to be made an enclosed habitable space." 52. GS takes the view that the provision of a garage door does not create an enclosed habitable space and it does not prevent the space from being used for the purpose of turning vehicles. 53. GS notes the definition of habitable room within the Environmental Planning and Assessment Regulation 2021 has the same meaning as the Building Code of Australia, while Building Code of Australia defines a habitable room as a room used for normal domestic activities. 54. GS takes the view that the provision of a garage door does not automatically create a habitable room and identifies the need for car parking within the identified garage area as there is no other car parking available on the site. 55. GS notes that the proposed modification does not result in any additional adverse impacts when compared to the approved development, in relation to overshadowing, privacy or views. 56. GS takes the view that for the above reasons, the modifications do not alter the essential material aspect of the approved development and the proposal is substantially the same." (Emphasis added)

The Council's Planner, Ms Rebecca Englund (RE), submissions: (Ex 3, paras [63], [67] - [73]) "63. Given that the original application that featured an enclosed turning area was deemed unacceptable by Council and ultimately refused, and that the 8.2 Application was then only considered to be acceptable subject to the imposition of Condition 93, it is RE's opinion that the exposed turning area was an essential feature of the development consent. … 67. RE notes that the visual impact of the access and parking arrangements on the site is also altered compared to that originally approved. The original consent approved a single width driveway approaching the dwelling, comprised of two narrow concrete strips, with turf to either side and in between. The driveway led to the undercroft area, which would primarily be in shadow, with a two storey built form suspended above. 68. The subject modification application, which relies upon the BIC, proposes a part single/part double width solid driveway that approaches the double width garage door. The change to the driveway width and treatment reduces the landscaped quality of the site as seen from the dwelling and neighbouring properties that look over the rear yard of the site. The relocation of the garage door, to enclose the undercroft area, also alters the massing of the northern façade and emphasised the three storey nature of the dwelling at that point. 69. RE is also concerned that the proposed modifications will alter the way in which the basement will be used. Under the approved plans, vehicles are required to turn into the garage to park within the secured basement garage. However, under the modified scheme, cars can simply drive straight into the garage to park securely. The potential alternate parking area is nominated in orange in the extract of the Basement Plan at Figure 4, on the following page. Figure 4: Extract of the amended Basement Level Floor Plan with notations by RE … 71. Further, parking within the undercroft would facilitate the use of the approved garage for habitable floor space. RE's concerns that the approved basement storage area and garage may be used for habitable floor space are qualified by the following: • The standard to which the constructed basement has been finished, as shown in Figure 5, with an unpolished floor slab and walls painted in a manner that anticipates skirting boards. This indicates that flooring of some description is to be introduced within the space, which is unusual within a garage. • The area nominated as the garage is air-conditioned, also evident in Figure 5, • The garage has operable windows and ceiling heights that facilitate habitable use, • A widened double width driveway has been constructed at the approach to the proposed garage door. This was not proposed or required in previous applications to facilitate turning but would be required to facilitate the parking arrangement indicated above. • A nib wall has been constructed between the approved undercroft turning area and the approved garage, as shown in Figure 6, which would prevent vehicles parking in the manner shown in both the approved and modified plans. • The dividing wall and doorway between the approved undercroft turning area and the approved garage have been constructed, set with gyprock, and comprise electrical connections and switches to lights that have been installed (Figure 7). This seems unusual in circumstances where there is no allowance for the approved garage door and when all other works to facilitate the proposed modifications have been undertaken, including: i. The widened entrance and bulk head to accommodate the modified garage door location, ii. The relocation of water management infrastructure to ensure it is not below enclosed floor space, iii. The widened driveway, iv. The deletion of the enclosing wall above the approved garage door, v. The deletion of the side opening and access stairs, and vi. The electrical cabling for the garage door and lights have already been installed within the proposed garage area. Figure 5: Photograph of the as-built garage. Note the ducted air-conditioning installed, the set and painted walls, and the gap left along the floor line for skirting and flooring. Figure 6: Photo of a constructed nib wall, perpendicular to the northern external wall and separating the approved garage and undercroft areas. Note that the wall has been partially set and contains electrical cables. Also evident is the lack of the wall above the approved garage door. Figure 7: Photo of a constructed dividing wall and doorway, separating the approved garage and undercroft area. Note that the wall has been partially set, contains electrical cables and the door has been installed (but removed). … 73. It is RE's opinion that the proposed modified development significantly alters a fundamental element of the original consent, resulting in a development that is not substantially the same as that originally approved."

Consideration: - 'substantially the same development':

A. Qualitative assessment - Change of Use:

The changes to the 'development' that the Court is required to consider turns not just on a comparison of proposed built elements in the amended MOD but on a question of a change of use of the approved development compared to the proposed modified development the subject of this Appeal. It is trite to say that "development" is defined in s 1.5 of the EPA Act as "the use of land" in addition to, relevantly, "the erection of a building", and "the doing of work".
In my opinion it can be inferred that enclosing a large opening in the wall of a building at ground level will change the character and hence the potential use of that opening. In the subject approved development the opening is designated by Council on the plan as "undercroft paved area" (emphasis added): see Basement Plan - 1, Drawing DA201, Revision C, (Ex 2, Tab 12, folio 238). It is clearly an outside area, not an inside area. So much is confirmed by the wording of Condition 93. This 'undercroft' space measures 6m wide, 7.5m deep and 2.7m high. It is largely in shade. By enclosing the 6m opening with a double garage door the amended application creates a change in the character and use of the 'undercroft' area such that in common parlance it could no longer be designated or referred to as an 'undercroft'.
This change has a number of elements to it. Firstly, there is a material change to the appearance of the building from the outside (as discussed below), secondly there is a material change to the use of the former 'undercroft' from being an outside area to an inside area and thirdly there is a material change to the way the former 'undercroft' can be used in the future. If used for parking vehicles that raises the issue of what use will be made of the currently approved parking area in the lower ground floor area which is freed up by the proposed modification.
The totality of these material changes in my opinion amounts to a substantial change in the use of the development which is both qualitative and quantitative.
The Applicant does not deny it wants to use the current approved parking area under the building for storage and the current approved 'undercroft' for parking vehicles. However there was evidence to infer the Applicant wants to enclose the garage entry for the purposes of using the space other than for parking cars and storage. This is discussed above in the extract from Ms Englund at paragraphs [63], [67] to [73] and Figures 4,5, 6 in the Joint Report. The proposed deletion of Condition 93 in the amended MOD supports such a conclusion.
As submitted by Council's solicitor Ms McCulloch: "Our concern about the unauthorised use, it's not speculating, it's factual. We look at the building as it's constructed today, and it looks to be constructed in a way that would facilitate use other than a garage. All of the elements that Ms Englund pointed to are evidence of that, including the widened driveway." (Transcript 20/7/2023, p 26, line 41 - 45)
The parties proposed draft without prejudice conditions of consent No 103 to regulate vehicular access and parking in the current undercroft and garage areas of the basement (Ex F). However conditioning Council's concerns about the use of these areas does not aid the Court's determination of the statutory test under s 4.55(2)(a) of the EPA Act. It does not ameliorate the findings I have made on the change to the rear façade of the house by the proposed infill of the undercroft with a garage door.
In any event I am not satisfied on the evidence that if the 'undercroft' is enclosed, that area and the adjoining garage & storage area will remain in the same use as approved by the original development consent. I accept the concerns of the Council's town planner confirmed by direct evidence from the Court's observations on site as shown in the photographs and commentary from Ms Englund in the Joint Report (reproduced above). The approved development plans and in particular Condition 93 expressly speak to a prohibition on the use of the area as habitable space. With its deletion there will be the opportunity to use the basement level of the dwelling house differently.
As pointed out by Ms Englund, in Hatch v Northern Beaches Council [2019] NSWLEC 1422, Acting Commissioner Bindon raised concern about a non-habitable space being used for habitable purposes, with the consent authority being none-the-wiser. The same concerns can be shared in relation to the subject modification application, in that there is nothing to prevent the area of the approved garage being used for habitable purposes: (Ex 3, para [72]).
I am not persuaded that this actual or potential change in the use of the basement area of the dwelling house building nevertheless results in a development that is substantially the same development as the approved development.
As stated by Council in the SOFAC (Ex 1, p 11): "Condition 93, which precludes the enclosure of the undercroft space over the life of the development, is a non-standard condition that was specifically imposed to ensure against the outcome now proposed. The openness of the undercroft area was a fundamental aspect of the issuance of the Development Consent, and the deletion of Condition 93 would not ensure the rational and orderly development of the site."
I note the Applicant, Grace Van Mourik, swore an affidavit on 17 July 2023 (Ex E) which without objection I allowed to be read. Mrs Van Mourik stated that she and her family have no intention of using the area as habitable space and she provided reasons as to why they have introduced different building elements to the basement area (as photographed in figures 3,4 & 5 above). However, evidence of the intentions of owners of land the subject of a development appeal is of very little relevance to the inquiry before the Court under s 4.55(2) EPA Act and Mrs Van Mourik was not cross examined. At any time the owner or occupant could change rendering that type of evidence of no application.

B. Quantitative - Rear façade - visual change - impact

The enclosure of the 'undercroft' has other substantial changes to the development itself. When viewed from the backyard area within the site there is a material difference to the bulk and scale of the whole building with a solid double width garage door in the place of what is currently an open 6 m wide undercroft. Looking at the rear façade and applying some basic geometry with reference to the floor plans for the purpose of assessing the proposed change, one quadrant of the rear facade (ignoring for these purposes the top floor) will present as a solid double door where it is currently approved as a 6 m wide and 7.2 m deep opening, similar in appearance to the top right quadrant which has an open balcony: Ex B Ground Floor Plan - 1, drawing DA203, Revision H This is demonstrated by the photo produced in the Joint Report by Ms Sedgmen: (Ex 3, at p 9, Figure 1). The photo is not dated but from my recollection on site I assume it was taken within a short time prior to the Court's site view. In this photo the proposed garage door area is covered in brown board behind the forklift, bottom left. Ms Sedgmen used this photo to demonstrate that the garage door will not be visible from Frascatti Lane when the rear gates are closed. Leaving that to one side, in my opinion the photo is demonstrative of the fact that enclosing the undercroft area is not "limited to a small portion of the rear façade of the dwelling" (emphasis added) as asserted by Ms Sedgmen (Ex 3, para [49]). The open deep verandah in the top right quadrant breaks up the form of the façade, as would the open deep undercroft bottom left. The qualitative and quantitative change in enclosing the undercroft area is material. Figure 1 View of dwelling at 35 Middle Head Road as viewed from the rear at Frascatti Lane
For these reasons I do not agree with the Applicant's submission that the built form remains generally consistent with the approved development (Ex 3, para [29]), Submission of Mr Messenger, para 11(c), even if, as the Applicant submits, the quantitative assessment having regard to maximum height, wall height, landscaped area, GFA, excavation depth and setbacks is generally consistent with the approved development (Ex 3, paras [32] to [43].
I note the Applicant's focus on a qualitative assessment of the door relocation is on the impact of the proposed garage door location when viewed from the rear lane and neighbouring properties. Based on an assumption that the rear gates will only be open fleetingly to allow cars in and out, the Applicant submits there will be negligible visual impact arising from the change, and the garage door will be imperceptible from the rear lane: (Ex 3, para [46] and [48]); Mr Messenger submissions, para [12]. However there can be no certainty as to when the rear gates are open or closed such that the Applicant's evidence of 'negligible visual impact' when viewed from the rear lane has an element of unreliability about it. Accordingly it carries little weight as to the inquiry before the Court, namely, whether the proposed change results in a development that is substantially the same as the approved development.

Discretionary matters

Mindful of the comments of the Chief Judge in Arrage (see discussion above at para [28]) I note the following factual matters arising under s 4.55(3) of the EPA Act relevant to my consideration of this Appeal but not determinative absent my finding under s 4.55(2)(a): 1. The amended proposal does not meet the objectives of the R2 Zone of MLEP 2012, namely, "to minimise the adverse effects of bulk and scale of buildings" and "to maintain the general dominance of landscape over built form…"; 2. The grant of the original consent subject to Condition 93 and Council's reasons for imposing that condition; 3. The changes already made to the interior of the basement area that infer a future use of this area as habitable space and the public interest in the orderly and rational development of land raised by Council in Contention 4 as follows: "The Modification Application should be refused as it results in unacceptable development creep and erodes the integrity of the original Development Consent": SOFAC, Ex 1, p 14.

Findings & Conclusion:

As a consequence of the comparative analysis undertaken above, I find that the modified development is not "essentially or materially or having the same essence" as the originally approved development because it differs in important respects compared to the approved development.
In summary, the fundamental qualitative & quantitative differences by enclosing the approved undercroft area with a large garage door, associated building changes and deleting condition 93 in the amended MOD, are: 1. the essence of the undercroft is changed from an outside open space to become an internal enclosed space thus also changing its actual & potential use: [paragraphs [31] to [41] above]. 2. the bulk and scale of the house from the rear is increased to a significant degree by the filling in of approximately 25% of the rear façade where there is currently approved a deep open area (the undercroft): [paragraph [43] above]. 3. the appearance of the house when viewed from the backyard and from the rear lane from time to time when the gates are open is of a very different modified rear façade that increases the dominance of built form over landscaping to a significant degree: [paragraphs [43] to [45 above].
The Council submitted that the changes in the configuration of the undercroft and garage area represented a substantial qualitative difference between the approved development and the amended MOD for which the Applicant seeks approval under this appeal. I agree with this conclusion for the reasons set out above and generally agree with the submissions made by the Council's planner Ms Englund in the Joint Report at paras [67], [68] & [73] (Ex 3) quoted above.
Taking into account my findings the Applicant has failed to satisfy the Court that the pre-condition under s 4.55(2)(a) to the approval of the amended MOD has been met and that the MOD should be granted.
I formally find that the amended MOD No 8.2019.121.4 the subject of this Class 1 Appeal is not substantially the same development as the originally approved development consent No 8.2019.121.1. Therefore the Court lacks power under s 4.55(2) to allow the amended MOD to proceed and the appeal must be dismissed.
The Court orders: 1. The appeal is dismissed. 2. Modification Application No 8.2019.121.4 for modification of consent No 8.2019.121.1 comprising amendments to driveway, garage, openings and deletion of Condition 93, at 35 Middle Head Road, Mosman, 2088, is refused. 3. The exhibits are returned except Exhibit A.

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. Decision last updated: 11 October 2023

Statutory context:

As noted above, the amended modification application 8.2019.121.4 seeking to amend the approved development consent was made to Council under s 4.55(2) of the EPA Act.
Section 4.55(2) and s 4.55(3) EPA Act are as follows: (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 4.8) 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 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. (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 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.
The modification provisions of the EPA Act and the test of "substantially the same development" have been considered in a significant body of caselaw, most recently by the Chief Judge in Arrage v Inner West Council [2019] NSWLEC 85 (Arrage). I note that in a more recent appellate decision which involved a different but related issue, Preston CJ's analysis of the statutory test was agreed by the Court of Appeal: Feldkirchen Pty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227, Preston CJ of LEC at [93] - [112], Macfarlan JA and Meagher JA agreeing.
In dismissing the s 56A LEC Act appeal in Arrage, his Honour set out an analysis of the interpretation of s 4.55(2) as follows: "[24] First, the essential elements to be identified are not of the development consent itself, but of the development that is the subject of that development consent. The comparison required by s 4.55(2) is between two developments: the development as modified and the development as originally approved: see Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16]. [25] Second, the essential elements are not to be identified "from the circumstances of the grant of the development consent"; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development. [26] The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence". That interpretation of the word "substantially" was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55]."
The Court's task involves an exercise of discretion and "the consent authority can withhold its approval for unsuitable applications even if the threshold of subs (1) is passed": North Sydney Council v Michael Handley & Associates Pty Ltd (1998) NSWLR 468; [1998] NSWSC 163, at [475] (Mason P), Shepherd AJA at [483].
An inquiry into the material and essential features or elements involves an appreciation, both quantitative and qualitative of the originally approved and modified developments: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 at [56] (Bignold J).
Section 4.55(3) requires the Court to take into consideration s 4.15(1) grounds that are relevant to the application. Section 4.15(1) considerations only arise in determining a modification application which "cannot occur unless and until the preconditions in s 4.55(2) have been satisfied": Arrage at [42] (Preston CJ). His honour emphasised that does not mean that the decision maker can't take into consideration the s 4.55(3) matters in determining the threshold question under s 4.55(2)(a). Rather, relevant s 4.15(1) EPA Act matters and "the reasons given by the consent authority for the grant of the consent sought to be modified", the second sentence in s 4.55(3), are discretionary, not mandatory considerations in the s 4.55(2)(a) determination: Arrage at [43]. In other words, it would not be an error of law to expressly consider, or not consider, relevant s 4.15(1) matters or the reasons for the grant of consent, in determining whether the precondition in s 4.55(2)(a) EPA Act was met: Preston CJ at [44].
The Applicant bears the onus of satisfying the Court that the proposed development as modified will be substantially the same: Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8.
I was assisted in this matter by submissions on Contention 1 from both parties' Planners set out in their Joint Report, written submissions from Mr Messenger, solicitor for the Applicant, and oral submissions from Ms McCulloch, solicitor for the Council.

(1999) 106 LGERA 298

(2008) 166 LGERA 342

Van Mourik v Mosman Municipal Council

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