Vigor Master Pty Ltd v Ku-Ring-Gai Council

Is the Proposed Modification substantially the same and as the Consent? s 4.56 EPA Act (Contention 1)

1. The Respondent contends that the proposed modifications will transform the development in a manner that is not considered to be substantially the same development as that originally approved.
2. On 23 May 2022, Modification Application No 0072/22 for "Modification to Land and Environment Court Approval 150625 of 2016 (DA0255/15) proposing increasing the number of boarding rooms from 26 to 29, a new roof top terrace, and changes to internal layout" on the subject site was lodged with Council through the NSW Planning Portal.
3. In the SOFAC, the Site is developed for a 'boarding house' pursuant to the works approved under DA0255/15; however, a final occupation certificate has not been issued.
4. The Applicant in the SOFAC in Reply contends that a final occupation certificate has been issued on 27 October 2021 to parts of the building including 25 Rooms and Manager's Room on Level 1. The other parts of the building that are affected by s 4.56 approval MOD0224/20 dated 19 May 2021 are excluded from the occupation certificate.
5. Section 4.56(1)(a) enables Council to modify a consent if it is satisfied that: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all),
6. On 2 September 2022, Council refused s 4.56 Modification Application No MOD0072/21 for the following reasons: "1. Substantially the same development The development is inconsistent with the requirements of Section 4.56A of the Environmental Planning and Assessment Act 1979 - Modification of consents granted by the Court Subsection (1) (a): Substantially the same development. Particulars (a) an increase in the number of storeys (from 5 to 6) by inclusion of an additional car park level. (b) a 60% increase in car spaces (from 5 car spaces to 8 car spaces). (c) a 15.2% (111.19m2 ) increase in floor area (from 729.81m2 to 841m2 ) within the 4 residential levels. (d) a 38% increase of occupancy rooms (from 21 occupancy rooms to 29, which includes Managers room). (e) a 68% reduction of internal "communal areas" (kitchen, toilets, laundry, living/dining) from 159m2 to 50.8m2 . (f) a 200% increase of external balconies from 2 to 12 - includes roof terrace. (g) an addition of 37.9m2 roof top terrace for communal space overlooking north, west & south. (h) a lowering of the basement car park level, at the driveway entry, by 1.18m (from RL96.13m to RL94.95m). (i) height reductions of floor to ceiling levels to achieve the additional car park level. (j) reduction in deep soil area."
7. Additional differences are particularised in the SOFAC Contention 1 as follows: "(x) a 22.08% reduction in deep soil area (from 41.08% to 19%). (xi) a reduction of side setbacks for the lower basement levels: - from 3m to approximately 1.28m at the northern side boundary. - from 2.135m to approximately 1.3m at the southern side boundary. (xii) a 75.8% increase in the lower basement floor plate (from 290.4m2 to 383.1m2 ). (xiii) the external elevations show design variation in terms of materials, colours, deleted and new windows, additional balconies, change in balcony balustrade material from painted brick to glass."
8. The experts agree that the land use, as a boarding house, has not changed (JER, par 28).
9. Although it is the Court that must be satisfied as to the jurisdictional prerequisite, the experts gave evidence as to their respective opinions which are ordinarily of some assistance to the Court.
10. Regretfully, Mr Dickson unfortunately expresses the erroneous opinion that the comparison text is with the consent as modified. As I stated in the decision Realize Architecture Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1437 (Realize) the test to be applied is set out in the statutory provision in s 4.55(2)(a) of the EPA Act (Arrage v Inner West Council [2019] NSWLEC 85 (Arrage), Preston CJ at [18]) and Preston CJ articulated the type of comparison required to satisfy the terms of the precondition to approving the modification of a consent as set out in s 4.55(2)(a) of the EPA Act in the decision of Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 (Feldkirchen), where Preston CJ at [112] said as follows: "[112] The comparison required by s 4.55(2)(a) is simply between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16] and Arrage v Inner West Council [2019] NSWLEC 85 at [24]. Case law on the precondition, both in earlier statutory provisions, such as s 102(1), and the current statutory provision of s 4.55(2), has suggested ways in which this comparison between the two developments might beneficially be undertaken. This includes identifying and comparing the "material and essential features" of the two developments: Moto Projects (No 2) Pty Ltd v North Sydney Council at [55], [56] and [58] and Arrage v Inner West Council at [26]. These suggested ways of undertaking the comparison between the two developments, however, do not displace the statutory test in s 4.55(2)(a) or demand that the required comparison be undertaken in those ways: Arrage v Inner West Council at [27], [28]."
11. Accordingly, I am unable to give Mr Dickson's evidence any weight as he applied the wrong test.
12. Mr Johnston relies on the particulars on Contention 1 in the SOFAC and provides a new calculation of 27.58% for the increase in occupancy rooms based upon the Consent granted for 21 boarding rooms (including a manager's room), the number of rooms proposed being 29, "29 rooms minus 21 rooms equals 8, which divided by 29 equals 27.58%" (JER at par 19).
13. The Applicant submits in closing as follows: "In relation to the not substantially the same development, I know you have recently considered that jurisdictional test in other matters and it's now clear since Arrage, A‑R‑R‑A‑G‑E, was decided that there is no single test beyond the words of the statue for determining this question, but there are helpful indicators in the authorities of the possible approach the Court can take. In this case, it seems to us that council has taken the approach purely on the basis of quantifying the differences, the changes, from the original consent to the current proposal and they haven't sought to make a qualitative argument that there are some that those changes have had a qualitative impact that changes the essence of the development. I think that we will perhaps accept for the moment that council doesn't contend that the changes affect any qualitative or make any qualitative change that converts the development from something that it was not originally. As far as the quantitative changes go, the remarkable or the striking feature of them is that most of those changes, and certainly the quantitatively large changes that have taken place, took place by dent of two modifications. One by the Court, with which council must have agreed because it was a s 34 conference ‑ that's mod 48 ‑ and one by council, mod 224, that preceded this application and have led largely to the building form that you inspected on the site today. Those changes are the ones that made the significant increases. This change ‑ this modification has what could only be described as minor changes to the development quantitatively from the major changes that have been made in the previous modification." (Transcript 16 August 2023 p 43)
14. I respectfully disagree with the Applicant's argument and accept the Respondent's submission that the Court would be in error to undertake the exercise of having regard to the previous various iterations of modifications that took place. I must make the comparison having regard to substantially the same test for the development for which consent was originally granted and before that consent was modified. The Court is not bound by previous considerations or comparisons undertaken by the consent authority and instead is to apply the test in accordance with the words of the statute.
15. The parties both rely on the decision of Feldkirchen and the Respondent refers the Court to the following other decisions: 1. Garbourg v Ku-ring-gai Council [2022] NSWLEC 1429 at [31], [35], [45], [46], [48] and [49]; 2. 193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197 at [19], [36], [43] and [52] (193 Liverpool).
16. I follow the reasoning and exercise that I undertook in 193 Liverpool.
17. There is no suggestion that there is any breach of a development standard or of a policy of applicable planning instruments for this Site. There is no suggestion that this development becomes something that is unacceptable from a planning perspective because of the changes proposed by the Proposed Modification. (Applicant's submissions in reply, Transcript 16 August 2023 p 49 at par 10).
18. In the matter of 193 Liverpool, I found that there was an essential element of that boarding house that the common room in a particular location had guaranteed solar access. The Applicant submits that the evidence before the court does not identify any such essential element, instead the evidence is: "… that the new common area proposed will have better sunlight access, will be larger and more usable, will be more convenient, and with the addition of the roof access there will be an attractive feature of a common area, which will essentially replace the small, rather pokey rooms where the common area had been previously planned. It's not a case, where the essential features of the development consent had been identified and they're missing now." (Transcript 16 August 2023, p 49 at par 22).
19. I accept that none of the modifications proposed or the modification previously approved alter some essential feature of the boarding house and that "in that qualitative sense, there's nothing in these changes that has been pleaded as making a difference between the original consent and the way it stands now." (Applicant submissions in reply, Transcript 16 August 2023, ps 49-50).
20. For these reasons I conclude that the Proposed Modification is substantially the same as the development for which consent was granted.

Merit assessment s 4.55(3) of the EPA Act

1. The merit contentions 2 and 4 require consideration pursuant to s 4.56(1A) of the EPA Act which provides that: (1A) 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.
2. The first merit contention relates to the internal amenity of the Boarding house and the Respondent contends that the proposal does not provide satisfactory internal communal open space to provide for appropriate living arrangements with respect to low-income housing (Contention 2).
3. The second merit contention is in relation to insufficient information regarding room sizes (Contention 4). This contention is pleaded in the context of the Public Health Regulation 2012 whereas the experts agree that the drawing contained in the Appendix to the JER show the 29 rooms with room sizes that meet the Public Health Regulation 2022 which has superseded the earlier regulation (p 12 JER). The Applicant tendered the Appendix to the JER being Drawing Number A102 and A103 both Rev 3 (Ex C, Tab 8). Accordingly, I am satisfied that there is sufficient information for the purpose of determining the appeal. I will now address the internal amenity of the Boarding house, contention 2.

Boarding house amenity - does the proposal provide satisfactory internal communal open space to provide for appropriate living arrangements with respect to low-income housing? (Contention 2)

1. The Respondent relies on the evidence of Mr Johnston who at par 30 and 31 of the JER provides the following evidence: "30. PJ is of the view that the deletion of communal spaces, as proposed, reduces the internal amenity within the boarding house, as a level of accessiblilty should be provided without having to access another storey, as approved under DA0255/156 and 'as-built' under approved MOD0221/20. 31. PJ is of the opinion that, the development, as built, can be enhanced for improved amenity by: (i) relocating the communal rooms to be opposite the lift and stairwell access, and replace the communal rooms with resident rooms, as shown within Appendix E (ii) the communal rooms not be enclosed by the corridor wall, so as to allow greater accessibility and to distinguish that the room is used for communal space."
2. Mr Dickson's evidence at par 32 and 33 of the JER is as follows: "32. ND is of the opinion that, the revised design layout improves the internal amenity for the boarding house. The communal room at the first floor at the entrance to the facility is large, with a kitchen and dining area and laundry close by. There is a toilet located immediately adjacent. The room has large areas of glazing and has the entrances close by which has a social benefit. The area is adjacent to the managers office which it to be supervised. The room is centrally located within the building and is accessible to all of the boarding rooms. 33. ND is of the opinion that a central communal room, adjacent to managers office with kitchen and laundry adjacent is capable of being managed more appropriately than having separate rooms. This central communal area is away from other rooms and is positioned so that there may be reduced disturbance on the individual boarding rooms."
3. The parties did not make substantive closing submissions in relation to this internal amenity contention. The Applicant submits in closing that they: "rely on what Mr Dickson has said and we think that our substitute communal area, although it's smaller than the combination of the three that are lost, does in fact have economies of scale and will provide a much more acceptable environment for mixing of people within the boarding house and the three very small and pokey rooms that had otherwise been provided. Those small and pokey rooms are within the conservation of occupant's rooms so any noise from them will reflect and interfere with occupation; whereas putting it on the ground floor is what we think is a sensible proposal." (Transcript 16 August 2023, p 45, par 30)
4. I conclude that the proposed internal communal open space does provide for appropriate living arrangements for the reasons given by Mr Dickson.

Conditions of consent

1. The Respondent filed Draft/Proposed Conditions of Consent on 1 September (Ex 5) and there are a number of conditions that are not agreed namely Condition 1G Amended Architectural Plans and Condition 93 Boarding House Occupation.
2. Condition 1G is titled "Amended Architectural Plans" and Ex 5 includes 2 versions of the list of proposed amendments to the architectural plans.
3. In substance, the Respondent's version deletes balconies and converts rooms 5 and 13 as shown in Drawing A102 into common rooms. Mr Johnston, in cross examination, gave evidence as to the increase in balconies proposed and how these have added to the external fabric and states that "it wasn't thought that each of the end of the units on the western and eastern side strips - Larkin Street and Sixth Mile Lane - all units would have balconies because of the benefit of a communal space on each of those levels" (Transcript 16 August 2023 p 32 par 10) and Mr Johnston seems to be more concerned about the amenity to residents of being able to access communal open areas on each of the floors. Although he does agree that having a rooftop terrace is beneficial.
4. Mr Dickson in cross examination, gave his opinion regarding the common room(s) (Transcript 16 August 2023 pp 36 and 37): "Commissioner, the effect of the draft condition is to put two communal open rooms on the principal floors across and on the left, and these are kind of lobby spaces, if I could have that broad definition defined. Then you come off the lift and you enter into a common room space. In my view, Commissioner, the rooms do not have the same utility as the principal communal lobby at the entrance to the building. This receives very good light. These two other substitute rooms, if I use that term for communal open space, are on the south side of the building. They're in the middle of the floor place, so in effect, it has low amenity from not having the sunlight, but by being in the floor place, any congregation of people there may cause amenity loss to the adjoining rooms on that floor. So, Commissioner, to be very clear, I see it preferable to have a consolidated communal space at the entry. I do not see the need to have these additional rooms placed on the floor in that location. I say that, Commissioner, because although I'm giving evidence of the plan of these proceedings, I'm also an architect and I design a lot of boarding houses and I'm very familiar in the manner in which communal rooms are used. And I'm very used to improving the amenity of residents at all times, so I do not support the draft condition."
5. The other difference between the parties in relation to condition 1G is whether planter boxes on the rooftop terrace should be added for visual and acoustic privacy and to what extent. The Respondent seeks to add planter boxes along the entire perimeter of the rooftop terrace whereas the Applicant proposes to limit them to the South eastern side of the roof terrace. The Court considered the evidence of Mr Johnston and Mr Dickson (Transcript 16 August 2023 pp 39 and 40). The Applicant relies on the set back of the roof and on the Plan of Management in order to manage acoustic privacy (filed with the Class 1 Application, Ex A) and referred the Court to the House Rules in relation to Privacy and Quiet Enjoyment.
6. I conclude that the condition 1G as proposed by the Applicant is preferred and I also find that the room number condition should be deleted because it will ultimately cause confusion with the Plan of Management (POM) which refers to room numbers and the POM correlates with the architectural drawings which has a number allocated to each room. It would also cause confusion with complying with other conditions of consent such as condition 93.
7. Condition 93 is titled "Boarding House Occupation" and is proposed to be modified however, the parties are unable to agree on the extent of the amendment.
8. As no submissions were made in relation to the competing clauses I have had regard to Drawings A102 and A103 Rev 3 in Ex C at Tab 8 which provides the size of each room to attempt to gain some assistance as to which rooms should be single occupancy rooms and which should be double occupancy rooms.
9. I make the observation that on Drawing A102 Rev 3 the table for the Ground Floor states "CONVERTED ROOM 1" which should read CONVERTED ROOM 2 to accurately reflect the Ground Floor notation on the plan. The second observation I make is that the Respondent's clause is silent in relation to the 3 converted rooms and also the wording in Annexure A is inconsistent with the wording in Annexure B, for example single room occupancy does not include room 22 in Annexure A. I also note that the Respondent proposes room 5 to be a double room which is smaller than the converted rooms at 13.51m2 and that the Applicant proposes the converted rooms 1 to 3 to be double occupancy rooms and these rooms measure at 16.64m2 and 17.13m2 (Converted Room 3).
10. I have gauged the comparative sizes of the other rooms in order to conclude that the wording proposed by the Applicant is preferred because it appears to be accurate and complete.

Orders:

1. The Court orders: 1. The appeal is upheld. 2. Development Consent No. DA0255/15 is modified in the terms in Annexure A. 3. Development Consent No. DA0255/15 as modified by the Court is Annexure B.

Amendments 02 February 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule") correction is made to the name of the applicant's representation. 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: 02 February 2024