Xu v Hurstville City Council

Edgar Allen Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC 681 Thomas v Pittwater Council [2003] NSWLEC 19 CASES CITED: Stravridis v Canada Bay City Council [2007] NSWLEC 248 Moto Projects No 2 Pty Limited v North Sydney Council [1999] LGERA 298 Vasic Pty Limited v Penrith City Council

APPLICANT Mr G Green, solicitor of Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor of Norton Rose Australia

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10671 of 2010 Xu v Hurstville City Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Hurstville City Council (council) of an application under s 96(1A) of the Environmental Planning and Assessment Act to modify a development consent (2009/DA-193) at 59 Pallamana Parade, Beverly Hills, for: Alterations and additions to a dwelling, ground floor additions, first floor extension and detached out-building to the rear. 2 The s 96 application seeks approval for the following works which have been carried out without consent: · increased excavation for a basement parking/storage area; · a new retaining wall; and · demolition of internal walls and ground floor slab. 3 The s 96 application also seeks consent to enclose a proposed first floor balcony. However, the applicant has agreed to a condition which deletes this enclosure. 4 The principal issue in dispute between the parties is whether the development, as sought to be modified, is substantially the same development as the initial consent for alterations and additions to the existing dwelling, given the nature and extent of unauthorised demolition, excavation and building works. 5 The site, its locality, the history of the proposal and the planning controls are in the Statement of Facts and Contentions. 6 A conciliation conference under s 34 of the Land and Environment Court Act was held on site on 23 November 2010. No agreement was reached and the parties agreed to me disposing of the proceedings under s 34(4)(b)(i), and that the site visit and evidence on site were evidence in the proceedings. Evidence 7 The Court heard expert planning evidence from Mr G Chapman, for the applicant, and Mr K Kim, for the council. The key disagreement between the planners is whether the extent of demolition is alterations and additions to the existing house or a new dwelling. 8 In Mr Kim's opinion, the external fabric of the existing building to be retained in the development consent is 66%, whereas the proposal retains only 27.5% of the external fabric. He states that "there is almost nothing left to be altered or added to and hence the proposal is a new dwelling". 9 Mr Chapman also compared the extent of demolition in the development consent and the proposal but drew different conclusions. In his opinion, the extent of demolition of external walls and roof remains unchanged and is more than 50% of the external fabric of the building. 10 Both planners referred to the principle in Edgar Allen Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC 681 where at [52] Commissioner Watts states: 52. A development application to alter and add to a building will be taken to be that relating to a new building when more than half of the existing external fabric of the building is demolished. The area of the existing external fabric is taken to be the surface area of all the existing external walls, the roof measured in plan, and the area of the lowest habitable floor. 11 The difference of opinion between Mr Chapman and Mr Kim as to whether the extent of demolition meets this principle results from the inclusion by Mr Kim of the ground floor slab as external fabric to be demolished. The ground floor slab was retained in the development consent and is removed in the proposal. 12 Mr Rigg for the council referred to the decision of Lloyd J in Thomas v Pittwater Council [2003] NSWLEC 19 where his Honour found: 18 In view of these facts I feel compelled to accept the view of Mr Swan and the submission of Mr Galasso that what is now proposed cannot be said to be alterations and additions to an existing dwelling house. Apart from the two sections of external walls which presently remain, the whole of the existing dwelling house has been demolished. There is almost nothing left to be altered or added to. The development as proposed to be modified amounts to a new dwelling which would incorporate token elements of the existing external walls. As I previously noted, the original development consent was for alterations and additions to an existing dwelling house. The development as proposed to be modified could not be so described. …… 20 I conclude, therefore, that the applicant has thus failed to discharge the onus of showing that the development as sought to be modified would be substantially the same development as that for which the development consent was originally granted. The applicant having failed to overcome this hurdle, one does not get to a consideration of the environmental impact of the modified development. This conclusion means that the Court does not have jurisdiction to grant the application. 13 Mr Rigg submits that the same circumstances apply to this appeal and that there is a material change as the development consent approved alterations and additions whereas the proposal is a new dwelling. 14 Mr Green, for the applicant, did not accept that the circumstances in Thomas are directly applicable to this appeal, as the extent of demolition referred to in Thomas (with only two sections of external walls retained) is substantially greater than the current circumstances. 15 Further, Mr Green refers to Stravridis v Canada Bay City Council [2007] NSWLEC 248 where Brown C considered a similar modification application where the extent of demolition of an existing dwelling increased from the development consent. Brown C found at [18]: 18 I am satisfied that a comparison between the development, as currently approved, and the development as proposed to be modified will be "essentially or materially"" the same as the approved development for a number of reasons. These are: · the proposed use does not change, · the external building envelope and volume is identical to the original approval, · the internal configuration is identical to the original approval, · the walls to be replaced have no special significance, · the new walls are generally in the same location as those demolished, · the safety and structural reasons for the removal of the walls was not challenged, · there was no suggestion that the retention of the walls was a fundamental consideration of the development application and that a different decision would have been reached if the walls were always proposed to be removed, and · the new walls do not impose any additional amenity impacts on adjoining properties. 16 Mr Chapman undertook a similar assessment of the proposal and drew the same conclusions as Commissioner Brown, that the proposal is "essentially and materially" the same as the approved development.

Findings 17 Section 96(1A) provides; (1A) Modifications involving minimal environmental impact 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 proposed modification is of minimal environmental impact, and (b) 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), 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 any period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1), (2) and (5) do not apply to such a modification. 18 The key dispute between the parties is whether the proposal meets the test in s 96(1A)(b) and is substantially the same development. 19 In Moto Projects No 2 Pty Limited v North Sydney Council [1999] LGERA 298, Bignold J deals with the question of what is substantially the same development. At [54] and [56] His Honour states: 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. 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). 20 In Vasic Pty Limited v Penrith City Council, Stein J, 24 February 1992, unreported, states at [8]: Is the proposed modified development substantially the same as that in the development consent as already amended? In my opinion, that "substantially" when used in this section means essentially or materially or having the same essence." 21 Mr Kim's comparison of the proposed modification with the development consent relies largely on a quantitative assessment of the extent of demolition and its compliance with the planning principles in Edgar. Put simply, in his opinion, 50% of the existing house was retained in the development consent and less than 50% is retained in the modification proposal. Consequently, the modification is not, in his opinion, alterations and additions but rather a new dwelling and therefore not substantially the same. 22 I do not accept this quantitative assessment. The external fabric of the building to be demolished remains largely unchanged as: · the surface area of the majority of the existing external walls is retained in the development consent and in the modification proposal; · the roof measured in plan is demolished in the development consent and in the modification proposal; · the area of the lowest habitable floor remains unchanged in the development consent and in the modification proposal. 23 Although the floor slabs and more internal walls are demolished, I do not accept that this constitutes external fabric of the building. Even if the external walls and the floor slab are included as external fabric, I do not accept that, of itself, these quantitative changes of more or less than 50% demolition of the existing building would change the development from being alterations and additions to a new dwelling. 24 I note that in both Thomas and Stravridis the extent of demolition exceeded 50% in the development consent for alterations and additions, and that substantially less of the original external fabric was retained in these development approvals and their subsequent modifications than is proposed in the current application. 25 The quantitative extent of demolition is one factor that requires consideration in determining whether the modification is essentially or materially the same as the approved development. However, a qualitative assessment also needs to be undertaken. 26 Mr Chapman undertook both the quantitative and qualitative assessment of the changes under the framework established by Brown C in Stravridis. I accept his conclusions that the proposal is substantially the same development for the following reasons: · the modifications do not change the approved use as a dwelling with basement parking; · the increased basement does not change the approved external building envelope or volume above ground; · The building would appear the same when viewed from the street or adjoining properties; · the external walls are in the same location as those approved; · the retention of the external walls was not a fundamental consideration of the development application; and · the new walls and the basement do not result in additional amenity impacts.

Other matters 27 The council raised the additional contention that the proposal would result in non-compliances with Hurstville Development Control Plan No 1 in relation to floor space ratio (FSR) (cl 4.5.3.4) and minimum side setbacks (cl 4.5.3.1). Mr Kim accepted that while there were technical non-compliances with these controls, no additional or adverse impacts would result beyond those in the development consent. 28 Council is seeking a condition which restricts the use of the basement to accommodate only two stacked car spaces and that the remainder of the basement is to be blocked with a masonry wall. As I understand, this condition is sought on the basis that the increased basement area will result in the proposal exceeding the FSR control. 29 I accept Mr Chapman's evidence that there is no planning justification for the imposition of this condition given that the proposal exceeds the FSR control by 20sqm, and it is the agreed position of the experts that the exceedence meets the objectives of the FSR control and results in no identifiable impacts. Order 30 The orders of the Court are therefore, (1) The appeal is upheld. (2) The application under s 96(1A) of the Environmental Planning and Assessment Act to modify development consent (2009/ DA-193) at 69 Pallamana Parade, Beverly Hills, is approved. The consent is amended as set out in annexure A. (3) The exhibits, except Exhibits A, F, 2 and 4 are returned.

Annelise Tuor Commissioner of the Court

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.