COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of a modification application DA/100/2014/F (Modification Application) which seeks to modify development consent no. DA/100/2014 (Consent) granted by Central Coast Council (Council) on 21 May 2014 for a childcare centre for 57 children and 16 car parking spaces at 96 Mataram Road, Woongarrah legally described as Lot 264 in DP 1036768 (the Site).
On 7 February 2024, the Applicant lodged the Modification Application with the Respondent. The Modification Application was deemed to have been refused on 18 March 2024.
The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 5 and 18 September, 8, 21 and 25 October 2024. I presided over the conciliation conference.
Following the provision of further information, the further work undertaken by the town planning, traffic and acoustic expert witnesses retained by the parties, and agreed conditions of consent, all contentions raised in Council's Statement of Facts and Contentions filed in the Proceedings on 26 April 2024 (SOFAC) have been resolved.
At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and approving the modification of the Consent subject to conditions.
Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.
The parties' decision involves the Court exercising the function under s 4.55 of the EPA Act to approve the modification which includes jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained how the jurisdictional prerequisites have been satisfied in an agreed Jurisdictional Statement.
The Modification Application is made with the consent of the owner of the Site as shown at Tab 2 of the Class 1 Application filed 22 March 2024.
The Modification Application was lodged pursuant to s 4.55(2) of the EPA Act.
The Respondent contends in the SOFAC that the Modification Application cannot be approved because firstly it did not seek to change any material physical aspect of the proposed development and cannot be approved (Contention 1) and, secondly, that the application seeks approval for modification which results in development which is not substantially the same as the development the subject of the original consent (Contention 2). In relation to the first contention, the amended Modification Application does seek approval for works as set out in the architectural plans thus resolving Contention 1. Those works are set out below at [17].
In relation to the second contention, the Respondent's concern regarding the proposed increase in the number of children was based primarily on the potential adverse acoustic impact on neighbours rendering the modification not substantially the same as the Consent. The Applicant amended its application and the parties now agree that there are satisfactory noise mitigation measures to ensure no change in acoustic impact from the development as approved.
The relevant jurisdictional requirements are contained in s 4.55(2) of the EPA Act, which provides as follows:
4.55(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.
The Court is satisfied that the Modification Application seeks approval for minor amendments to the development that will result in the development being substantially the same development as that approved by the Consent. The Consent was approved by the Council on 21 May 2014, which can be described as a two-storey childcare centre for 57 children with 16 car parking spaces along the eastern boundary of the Site.
The development as proposed to be modified is described as a two-storey childcare centre for 92 children with 24 car parking spaces along the eastern boundary of the Site.
The original consent has been modified on a number of occasions, as follows:
1. On 11 February 2015, the Council approved Modified Consent No. DA/100/2014/A by deleting Condition No. 52 which related to the need to create an easement to drain sewer 6 metres wide.
2. In October 2016, the Council approved Modified Consent No. DA/100/2014/C by, inter alia, providing a lift to access the upper level, increasing the upper floor level area and subsequently increasing capacity at the centre from 57 to 80 children, adding five additional car parking spaces.
3. In December 2016, the Council approved Modified Consent No. DA/100/2014/D by amending Condition No. 6 relating to timing for payment of development contributions.
4. On 19 April 2022, the Council issued the Notice of Determination of the approval to Modified Consent No. DA/100/2014/E on 8 April 2022 by:
1. Revision to the siting and design of the childcare centre, including reconfiguration of the layout of the indoor play areas and administration areas (both the ground and first floor).
2. Minor reconfiguration to the indoor play area resulting in an increase to the unencumbered indoor play area from 271.25m2 to 309.8m2, an increase of 38.55m2.
3. Revision of the outdoor play area resulting in an increase to the unencumbered outdoor play area from 491.95m2 to 813.4m2, an increase of 321.45m2.
4. No increase to the capacity of the childcare centre (80 children), however, an increase to the number of children in the 3-5 indoor play area 3 on the ground floor from 29 to 30 places, and a subsequent decrease to the number of children in the 3-5 indoor play area 4 on the first floor from 23 places to 22 places (to better align with child to educator ratios).
5. Revision of the parking arrangements to increase car parking provision from 21 to 24 spaces, and reconfiguration of the parking area to increase the volume of outdoor play area.
6. Amending Condition No. 1 to reflect the updated plans submitted with the application.
7. Increasing the overall floor area from 524.43m2 to 584.39m2, an increase of 59.96m2 of floor space with the following breakdown:
1. Ground Floor: from 317.02m2 to 357.49m2
2. First Floor: from 207.36m2 to 226.90m2
In considering the 'substantially the same' test under s 4.55(2), I have considered the Court's recent guidance in the Realize Architecture case (Canterbury-Bankstown Council v Realize Architecture Pty Ltd [2024] NSWLEC 31 (Realize Architecture Appeal), and case at first instance, Realize Architecture Pty Ltd v Canterbury-Bankstown Council [2023] NSWLEC 1437). These include the following from Preston CJ's Realize Architecture Appeal at pars [29] to [43]:
1. Whilst an assessment of quantitative and qualitative features of the two developments may be of assistance in undertaking a comparison, it does not displace the test in s 4.55(2)(a);
2. By themselves, a finding of fact on qualitative or quantitative differences are uninformative of whether or not the development is or is not substantially the same. What is required is an evaluative categorisation of facts, to assign relative significance or weight to the different facts, and balancing the facts as weighted. Thus, greater weight could be given to the qualitative comparison (i.e. impacts) if the decision maker considered it appropriate.
3. A simplistic approach of relying on, for example, a negative determination in regard to quantitative differences is not the correct approach.
4. A change to "critical elements" does not necessarily mean that a development is not substantially the same. Identifying "critical elements" is at most an aide to assist in undertaking the comparative exercise required under s 4.55(2)(a), but does not replace it.
The amendments sought in the Modification Application are set out at page 5 of the Statement of Environmental Effects prepared by Think Planners Pty Ltd dated 19 December 2023 and found at Tab 5 of the Class 1 Application, and after the amendment to the Modification Application, is summarised as follows:
1. The recalculation of the unencumbered indoor play area to correctly depict the unencumbered indoor play area as being a total of 305.7m2;
2. Increase to the overall child care numbers from 80 to 92 children;
3. The installation of an acoustic parapet along the eastern and northern elevation of the pergola in External Playground 2 (Pergola);
4. Additional Perspex screening above existing fence to the south of the Pergola and a further acoustic structure to the north of the Pergola;
5. The repositioning of the bin storage and waste management area; and
6. Condition 1 to be updated to reflect the updated plans.
The parties agree that the proposed modification results in a development which is substantially the same as originally approved.
The parties rely on a number of modification applications which have involved increases in capacity (as well as other changes), which the Court has found to be 'substantially the same' by way of comparison. These other decisions include the decision Zaki v Ku-ring-gai Council [2019] NSWLEC 1614 where Chilcott C approved a modification of an existing childcare centre to increase capacity from 78 to 96 children (an increase of 23%). One of the reasons given by Chilcott C in finding that the modified development was 'substantially the same' as the original development was at par [40], that there will be no increase in noise emissions from the outdoor play area.
The Modified Application retains the same fundamental essence of functioning as a childcare centre, and has impacts on neighbours and the locality (most critically traffic/parking and acoustic) which are very similar in nature and degree as the original development as approved the parties agree that at some locations, there are reductions in predicted acoustic impacts to receptors. In more detail, the Modified Development:
1. retains the same use of the Site as a childcare facility, and will only have a minor increase in the intensity of the currently approved use (as explained in the supplementary traffic and acoustic reports prepared in respect of the Modification Application);
2. will not amend/delete any 'critical', 'material' or 'essential' element of/from the original development, and cannot reasonably be described as being 'dissimilar' or 'inconsistent' with the original development;
3. will not lead to any additional privacy or amenity impacts (as a result of the additional noise attenuation and mitigation measures proposed following the amendments made to the Modification Application);
4. retains the same building massing on the Site in terms of how it presents to the Mataram Road frontage, i.e. a two-storey building formerly approximately 21.5m in length, now presenting as a two-storey building approximately 15.5m in length, and has an improved relationship to the public domain at ground level as a result of improved planting and superior building articulation;
5. retains the same building depth from the Mataram Road frontage in terms of the ground floor building massing, namely formerly approximately 31m, now approximately 33m;
6. preserves the same setbacks from the front and side boundaries (including the current layout, setbacks, and built form);
7. increases the 0-2 year old outdoor play area from 100.01m2 to 113.20m2, and increases the 3-5 year old outdoor play area from 470.02 m2 to 635.70m2;
8. maintains the street facades and streetscape character (when viewed from the north and north-east) and current access arrangements (with only a marginal increase in hardstand arising from the additional car parking spaces);
9. will not significantly or negatively alter the external appearance of the building such that there would be a 'severe transformation in the overall built form which would warrant a new application';
10. has an overall increase in landscaped area on the Site resulting from a separate subdivision approval for the rear (southern) portion of the Site not being acted on;
11. proposes only a very minor scope of physical works (specifically the reorientation and increasing in size of the bin store area, and the addition of additional soundproofing infrastructure (in the form of an acoustic parapet to the covered pergola in Playground 2); and
12. critically, with the amendments made to the Modification Application after the commencement of these proceedings by way of the acoustic parapet and other structures specified at [17(3)] and [17(4)], the resulting improvements in acoustic impacts on nearby residences are such that the additional children will not have an acoustic impact significantly worse than the acoustic impact of the original consent, and a substantially less adverse acoustic impact to that created by the current consent as previously modified.
For these reasons, I find that the proposed modification is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified.
In relation to the other relevant requirements of s 4.55(2) of the EPA Act, I am satisfied that the Council has notified the Modification Application in accordance with s 4.55(2)(c) of the EPA Act, including notifying each person who previously made a submission in respect of the Consent and prior modifications of the Consent.
The parties have considered the submissions made by the objectors in reaching the agreement.
The parties agree that pursuant to s 4.55(3) EPA Act the Modification Application is satisfactory taking into consideration the relevant matters referred to in s 4.15(1) of the EPA Act. In relation to the requirement under s 4.55(3) of the EPA Act that the Council consider the reasons given by the consent authority for the grant of consent that is sought to be modified, the conditions forming part of the Consent did not contain reasons in relation to the specific conditions sought to be modified by the Modification Application.
I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I adopt the reasons given by the parties.
As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision.
[2]
Notations:
The Court notes:
1. Central Coast Council as the relevant consent authority has agreed, pursuant to s 113 of the Environmental Planning and Assessment Regulation 2021, to the Applicant amending Modification Application No. DA/100/2014/F in accordance with the following documents:
1. Revision F Architectural Plans prepared by Creative Drafting Services dated 19 June 2024; and
2. Further Amended Plan of Management prepared by Think Planners dated 11 October 2024.
1. The Applicant has filed the abovementioned plans with the Court.
[3]
Orders:
The Court orders:
1. The appeal is upheld.
2. Modification Application No. DA/100/2014/F is approved and Development Consent No. DA/100/2014 is modified in the terms in Annexure A.
3. Development Consent No. DA/100/2014 as modified by the Court is Annexure B.
[4]
Commissioner of the Court
Annexure A
Annexure B
Architectural Plans
Plan of Management
[5]
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Decision last updated: 06 November 2024