Vigor Master Pty Ltd & Jiang v Lane Cove Council

18 I must therefore consider the jurisdictional question in accordance with the provisions of s 96(2)(a) of the Act. 19 The town planning experts, Ms Li for the council and Mr Moody for the applicant, considered the merit issues of the amended proposal and concluded that the outcome of the changes made and proposed to be made to the plans were beneficial and had merit, despite not being fully compliant with the Code. There is some level of agreement as to the extent of works, which, if I find that the consent can be modified, should remain. 20 In relation to the building certificate, the council maintains there is insufficient evidence available to demonstrate the dwelling as erected complies with the BCA and that all work associated with stormwater and sewer piping is contained within the site. For that reason, it is the council's position that a building certificate for the works should not be issued. The applicant however maintains that the Court can order what works are required to be carried out and, on completion of those works, direct the council to issue a building certificate.

The site view 21 As is practice of this Court, I inspected the site in the company of the legal representative of the parties and those experts advising them. In addition, I inspected the neighbouring heritage item, No. 15 Northwood Road, in the company of the parties and the owners of that property. The neighbours expressed their concern about the unauthorised works, in particular, the basement, rooftop terrace and glass structure and the possible impacts associated with excavation of the site and subsidence in part of their yard area which they attribute to the works. They were particularly concerned about the privacy impacts associated with the use of the roof area and the upper level glass structure.

The amended plans 22 The applicant had been granted leave to rely on amended plans, which were to address the contentions of the council in relation to the privacy implications of the roof and ground floor terraces and inadequate landscaping. 23 During the course of inspection, a number of new matters were determined which were not identified on the plans before the Court. In particular, the internal pool and a pool equipment structure that had been erected at the basement level and in close proximity to the common boundary shared with the heritage item was not shown on the plans. Further amended plans were submitted to the Court after conclusion of the hearing. Those plans are agreed by the parties to represent the extent of work that has been carried out on the site and the works proposed to mitigate the impact of that work and are the plans on which I must determine the applications.

The s 96 application 24 The parties disagreed on the primary test pursuant to s 96(2)(a) of the Act as to whether the development as proposed, and detailed on the final amended plans which reflect what has been built on the site along with the reduction in height of the glass, roof level structure, is substantially the same development. Therefore, I must determine this issue and then, if I do find the works to be substantially the same, I must proceed to a merit assessment of the proposed modification. 25 The relevant provision is as follows: (2) 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 26 In Vacik Pty Limited v Penrith City Council (LECNSW, 24 February 1992 unreported), 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. 27 In Moto Projects (No. 2) Pty Limited v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, 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). 28 It is clear from Moto that there are two elements to be determined, they are a qualitative and a quantitative assessment of whether the modified development would be one that is substantially the same development as that originally approved. 29 The extent of changes made to the development are listed in the council's reasons for refusal of the Building Certificate with the exception of the following: o Deletion of the fishpond and conversion of this area to a rainwater tank and landscaping in the form of a deep planter box. o A sandstone garage was approved to be retained under the original development consent however it was to be used to house a 12000 litre rainwater tank and detention tank. It has been rebuilt and is longer and wider than the former structure and is proposed to be used for carparking. Its roof area has been changed from a grassed area to a hard surface and the external stairway that provided access to the garage from the yard area has been deleted. The original garage would have been a freestanding building however the garage is now incorporated into the main dwelling structure. o Height of the glazed roof structure is reduced to 1.1metres and the door is to be removed. 30 In addition the amended plans provide for further works that did not form part of the original approval: o Landscaping and retaining wall construction within the McMahons Road road reserve. o 1.5m and 1.7m high privacy screens to the southern and western enclosing walls respectively, of the children's playground area. o planter boxes 1.4m wide and setback 600mm from the southern property boundary to the terrace area on the ground floor level and application of translucent film to the glass of the balustrade. o 1.4m wide planter box along the southern extent of the ground level children's playground area. o A pool equipment room on the basement level, setback 220mm from the western property boundary and attached to the dwelling. o Windows to northern façade of basement level home theatre to be fixed. o Western wall of swimming pool area set off boundary by 600mm. o Entry stairway to be built to eastern property boundary. o Additional storage area at basement level. o Width and area of living room increased. o Increased foyer area. o Sliding doors from family room to new verandah at the northern elevation on ground level. o Increase in the area of the first floor TV room and provision of additional walls to enclose the area above the entry foyer. o Increased balcony area at first floor level adjacent to TV/Master bedroom o Deletion of the notation that obscure glass would be used to the bathroom and wardrobe windows on the first floor. 31 It is clear that there have been a significant number of changes to the approved plan and I heard expert evidence from the planning experts on whether these changes meant that the ultimate development now proposed was substantially the same as that approved under the development consent. 32 Mr Moody was of the view that the development was substantially the same and stated that the plans approved under the original consent did not detail the impact of the bulk, scale and height brought about from the retention of the existing garage and retaining wall that supported the rear yard area. When this was considered, he was of the opinion that the building would have a similar appearance and therefore would be substantially the same development. 33 Whilst Ms Li agreed that the individual changes, when assessed separately might have been meritorious, however, the cumulative impact of those changes was so significant that the final development would not be substantially the same. Ms Li held the view that the dwelling is now in affect a three storey structure, was significantly greater in floor area, occupies a greater portion of the site and is closer to the boundaries than originally proposed, contains an indoor pool rather than an outdoor pool, has hardstand terrace areas in the rear yard where the original development incorporated grass and deep soil, and that a significant amount of excavation of the site was required to facilitate the basement area. 34 Both experts agreed that the change from an open pool to an enclosed pool was a substantial change however Mr Moody was of the opinion that holistically the change was not substantial. Ms Li took the contrary view. 35 It was agreed that the entire basement level would comprise habitable floor area however that area would not constitute floor space for the purpose of calculating the floor space ratio of the development. 36 In relation to the significance of the excavation, both experts agreed that substantial excavation of the site was required for the construction of the basement area. Ms Li considered the means of providing foundations for the dwelling was completely different from that contemplated by the council and that no excavation would be required. Mr Moody acknowledged that the basement level is a change but it was not highly visible in terms of its externalities and therefore had no impact when viewed from neighbouring properties or the public domain. He stated that had the plans approved shown the existing garage and retaining wall, the development would present as a three level development so the changes were not substantial. Ms Li does not agree and stated that the approved development was for the retention of the existing garage, demolition of dwelling and construction of a 2-storey house. There are now 3 levels and this is substantially different. 37 In his closing submissions, Mr Johnson for the applicant narrowed the issues for consideration to two, those being the new elements and the use of the building. He expressed the view that there had not been any major changes to the structure and the issue is therefore the use, which he contends has no substantial change as it will remain a residential dwelling, the number of bedrooms hasn't changed, the height hasn't changed nor is their any change to overshadowing. He further contends the changes to be made are minor and that there has been no radical transformation, or no environmental impact. Whilst there have been many changes, he puts the view that this doesn't mean it's not substantially the same development. 38 Taking the contrary view, Mr Seton for the council, put the view that Mr Moody had taken too narrow a view and referenced Moto where, at paragraphs 51 and 64 Bignold J states 51 In my judgment, that opinion (which adopts the cautious approach signified by the expression "could be viewed") is legally flawed in as much as it places undue reliance upon the modification representing "only a fraction of the overall development" 64 Although it is well established that the comparative task required to be undertaken to satisfy the requirement of s 96(2)(a) involves a comparison of the whole of the developments being compared, that fact does not eclipse or cause to be eclipsed a particular feature of the development, particularly if that feature is found to be important, material or essential. 39 Mr Seton then undertook a qualitative and quantitative analysis of the development as proposed and argued that the development, in a quantitative sense is not substantially the same development because: o Habitable space of approximately 300m2 containing various rooms has been added and whilst accepting this does not constitute floor space for the purpose of calculating floor space ratio, he maintains it is a big change; o The garage has been deleted and adds more floor space to the dwelling; o The site has been excavated up to 3.7m to provide for the pool and 2.7m to provide for the basement level; o The shape and dimensions of the pool are changed and it is now wholly contained within a building; o Additional built form at ground and first floor terrace levels which increases the floor space of the development; o Provision of stairs and a roof top structure to the Level 1 roof; and, when considered separately, the addition of 300m2 of floor area would be enough to fail but when looked at together, it shows the development fails to satisfy the test established under s 96(2)(a). 40 From a qualitative sense, Mr Seton states the development is not substantially the same because: o There was to be no more than 1m of excavation for the dwelling house and no cut and fill; o The functionality of the sub-terrace areas is much different from what was originally proposed; o The indoor pool is substantially different to the outdoor pool; o The functionality of the dwelling house is substantially different; o The deletion of the garage area and renovation of the former garage and its change it significant;

and again, argues the cumulative impact of those changes show that the development is not materially or essentially the same development.

Conclusions and findings in relation to the Section 96 application. 41 From the evidence provided and a comparison of the plans approved under the original development consent with those now proposed, I consider that there are five major changes that mean the development is not substantially the same. Those are: o The excavation of the site to provide an additional floor level within the building to be used for habitable purposes. o The physical changes made to the building which increase its bulk, scale and appearance, in particular the increased floor space associated with the changes to the entry foyer, dining area and children's playground area on the ground floor level and the areas adjacent to the TV room, void and bedroom 3 on the first floor level and the connection of that level with a stairway to the roof structure. o The change of the pool from an outdoor pool with grassed surrounds to an indoor pool. o The change of use, rebuilding and enlargement of the garage from a water tank/detention area to car-parking and the attachment of that area to the main building. o The expansive, hard-surfaced terrace area above the garage and around the indoor pool, which replace a grassed yard area.

Merit assessment 42 If I am wrong in the conclusion that I have reached on the jurisdictional test arising under s 96(2)(a), I should proceed to a merit assessment so that, if there were to be a successful appeal on my jurisdictional assessment, the parties could consider the outcome of that merit assessment to assist in ensuring that there could be a just, quick and cheap resolution of the matters as might arise on the remitter so as to facilitate achievement of the objectives of s 56 of the Civil Procedure Act 2005. 43 I note the originally approved plans complied with the council's maximum floor space ratio as specified in clause 3.2 of the Code of 0.5:1. The Definitions in Section 8 of the Code define floor space ratio as: the ratio of the gross floor area to the area of the site on which the buildings may be erected exclusive of the area of any access handle.

44 Gross floor area is defined as being: the sum of areas of each floor of all building where the area of each floor is taken to be the area within the outer face of the external enclosing walls (as measured at a height of 1400mm above each floor level), excluding: i. The area of garages, carports, and any internal car parking and access up to a maximum of 40m2 per dwelling; ii. Any basement area including undercroft areas that do not project more than 1.5m above the natural ground level (where any part of the basement or undercroft exceeds 1.5m above natural ground level, the whole of the basement or undercroft will be included in the floor area)….. External decks, balconies or terraces which are covered by more than half of its width will be included as part of the gross floor area. Only the covered area will be included in the gross floor area. 45 Whilst the precise floor space ratio has not been calculated for the new works, the resultant floor space ratio would significantly exceed 0.5:1 and this is one of the matters that I find contribute to the development not being substantially the same. I note that the planners, when looking at the individual increases to floor space considered that they are minor and, in some cases lead to an improved level of amenity, however, I find that the cumulative impact is significant and is therefore not supported. 46 Section 3.8 of the Code requires a two storey dwelling, including balconies and stairs, be setback 1.5m from side boundaries. The dwelling as erected is constructed to within 220mm of the western boundary and on the entire southern property boundary. I acknowledge that the former garage and retaining wall were also erected to that boundary however, I consider it would be unlikely that any approval for a new dwelling would permit a wall along the entire boundary and, if it did, the wall would not incorporate six windows. 47 A roof structure was not approved in any form under the original consent. The council in fact made specific provisions by way of the deferred commencement conditions, which required the plans to be amended so that no works were carried out on the roof level and the area was not to be used as a roof terrace. I find that the proposed glass structure with a maximum height of 1.1m is not inappropriate in its form and context and provided the stairway that provides access to that structure from the first floor level is demolished, I would support the construction of the structure as shown on the final amended plans. I would not support any access or use of the roof area, apart from maintenance purposes, due to the privacy impacts associated with such use. 48 When considering the application as if it had not been built, I would not support excavation of the site to the extent required to construct the basement level. The usual practice of constructing piers is a better environmental solution for founding a structure on rock. I find the excavation carried out excessive, unnecessary and contrary to clause 3.1 of the Code which limits the extent of excavation to 1metre. 49 I agree with the experts that the enclosed pool would have less impact on adjoining neighbours than the outdoor pool however, when measuring this impact against the loss of deep soil area I find the extent of hardstand area excessive. 50 In conclusion, on a merit assessment, I am not satisfied that the development as proposed is appropriate for the site and accordingly, should be refused.

The building certificate application. 51 The council refused the applicant's application for a building certificate under the provisions of s 149A of the Act. Section 149D of the Act details the Council's obligations to issue a building certificate as follows: (1) The council must issue a building certificate if it appears that: (a) there is no matter discernible by the exercise of reasonable care and skill that would entitle the council, under this Act or the Local Government Act 1993: (i) to order the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings for an order or injunction requiring the building to be demolished, altered, added to or rebuilt, or (ii) to take proceedings in relation to any encroachment by the building onto land vested in or under the control of the council , or (b) there is such a matter but, in the circumstances, the council does not propose to make any such order or take any such proceedings.

52 The council refused the application for the building certificate on the basis of the development being contrary to the development consent and for the particular reasons set out in paragraph 15 of this judgment. It is not appropriate that I take into account that much of the work is unauthorised; see Ireland v Cessnock City Council [1999] NSWLEC 250. I must however take into account whether the application merits approval. 53 It was agreed that the development as erected on the land does not comply with the provisions of the BCA in relation to boundary setbacks and protection of openings. It was also agreed that the building does not comply with the requirements of the Code for dwelling houses, fences, private swimming pools and outbuildings.

54 From my merit assessment of the s 96 application, I find it likely that the council could decide to order the building to be demolished, altered, added to or rebuilt and accordingly, this is a consideration that I need to make in determining whether the certificate should be issued and whether I should order the council to issue a certificate which would prevent it making an order pursuant to s 149E(1)(a) of the Act. 55 At the present time, there is no evidence available to the court as to the structural integrity of the building. During the hearing, it was suggested that evidence would be presented to attest to its structural adequacy however this was not tendered. A geotechnical report was provided as Exhibit A however this report only addressed the issue of excavation. 56 There were also no details of the means in which the building can be made to comply with the BCA and the Code. It was suggested through the hearing that one way in which the necessary fire rating of the windows on the property boundary could be achieved is by way of drenchers however no precise detail has been provided. It has not been shown if this work can be contained within the property boundary or whether access for maintenance of the works can be achieved. In addition, without demolition of parts of the building, compliance with the Code could not be achieved. 57 Mr Johnson was of the view that the works that need to be carried out to the building could be the subject of an Order pursuant to s 149F(3)(a) of the Act which states: (3) On hearing the appeal, the Court may do any one or more the following: (a) It may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, (b) It may revoke, alter or confirm a notice under section 149C, (c) It may make any other order that it considers appropriate.

58 Mr Seton stated that this would not be appropriate as there was no indication of what work is required. 59 Whilst I am satisfied that the building can be altered to be brought into compliance with the BCA, I do not know the extent of work that is required and importantly, cannot assess the visual or physical impact of that work, whether it can be carried out within the confines of the site and whether it would, on a merit assessment warrant approval. 60 Having found that the building does not warrant approval in its present form in my assessment of the s 96(2) application, I cannot allow the grant of the building certificate as I am not in a position where I could issue an order that specified the terms and conditions that would allow a certificate to be issued pursuant to s 149F(3)(a).

Orders 61 In Appeal 10365 of 2010 the Orders of the Court are:

1. The Appeal is dismissed.
2. The application to modify Development Consent DA167/06 is refused.
3. The exhibits are returned. 62 In Appeal 10429 of 2010 the Orders of the Court are:
4. The appeal is dismissed.
5. The exhibits are returned.

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