Zoro Developments Pty Ltd v Northern Beaches Council

Land and Environment Court (NSW)|2023-09-18

Judgment

COMMISSIONER: A partially constructed building at 67 Seaforth Crescent, Seaforth, has stood largely undisturbed since the issue of a stop work order in early 2020. The applicant and owner of the land, Zoro Developments Pty Ltd (Zoro) seeks to modify a development consent that applies to the site, which will, in turn, allow works to be carried out to the building. Zoro lodged a modification application with Northern Beaches Council (the Council) on 20 April 2022. Following the expiry of the period after which a modification application is deemed to be refused, Zoro lodged these appeal proceedings, pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).
The proceedings were required to be listed for a conciliation conference in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference commenced on site on 14 March 2023. On that date, I made a determination the proceedings were not to continue to be dealt with under s 34AA(2). The proceedings were then listed by the Registrar for a court hearing on 18 September 2023.
The proposed modification is to the development consent (DA127/06) granted on 15 October 2007 for the construction of a new detached dwelling with double car hard stand, inclinator and landscaping. The modification application was amended prior to the hearing, and is now confined to changes to the inclinator landing and stair access on the western side of the dwelling, a proposal for a window on the western elevation in lieu of the door approved by the consent, and the introduction of new open timber stairs with open timber balustrade at the rear of the property, where the property fronts Middle Harbour.
The Council now agrees that the modification application can be granted, and the consent modified as proposed. It accepts that each of the contentions initially raised in its Statement of Facts and Contentions have been dealt with. For the reasons that are set out below, I accept the parties' agreed position that the application can be granted.

The site and its history

A detailed description of the site and its history is contained in [12]-[31] of Zoro Developments Pty Ltd v Northern Beaches Council [2020] NSWLEC 1349 (Zoro Developments), in which judgment was given concerning the stop work order. Only the salient aspects of the site and its history are repeated here.
The site is a battle-axe block accessed from Seaforth Crescent, legally known as Lot 2 DP 842913 with a street address of 67 Seaforth Crescent. It has a total area of 629m2 and is adjoined by residential dwellings to the north, east, and west and Middle Harbour to the south. The site benefits from a number of easements over the adjacent land, Lot 1 of DP 842913, including over an area immediately adjacent to the site for right of footway and for services. Part of the inclinator landing is now proposed by the modification application to be within the area of that easement.
A construction certificate was issued on 28 June 2018, and building works commenced on the site in around March 2019. A number of problems with the works were identified by the Council, including the carrying out of works that encroached onto other land and works that were not consistent with the construction certificate, as well as deficiencies in the works required to be carried out by the conditions of the consent to ensure the geotechnical stability of the site. As a result, an emergency order was issued on 16 December 2019 concerning site stabilisation, and a stop work order was issue on 20 February 2020.
On the appeal against the stop work order in Zoro Developments, the following orders were made on 7 August 2020: "The Court orders that: (1) The appeal is upheld. (2) The Stop Works Order issued 20 February 2020 is modified to read: 1. Immediately stop and cease all building works at the property known as 67 Seaforth Crescent Seaforth NSW 2092 (Lot 2 DP 842913) ("the site"), except for the permitted works, until: (a) a modification of Development Consent DA 127/06 is granted that incorporates some or all of the development as constructed; and (b) a construction certificate is issued in accordance with the modified development consent. 2. "The permitted works" are the works specified in the Emergency Order EPA2019/0386 issued by Northern Beaches Council dated 16 December 2019 and any other order that is issued with respect to the site under the authority of the Environmental Planning and Assessment Act 1979, the Local Government Act 1993 or the Protection of the Environment Operations Act 1997."
Sub-paragraph (2)1(a) is perhaps imperfectly worded but the reasons for the terms of (2)1 are expressed at [90] of Zoro Developments: "Finally, rather than allowing the stop work order to continue in perpetuity, I am satisfied that the Court's discretion ought to be exercised so that the stop work order remains in place until such time as Zoro can carry out the remaining works without contravening the EPA Act."
Consistent with the position of the Council at the hearing, I then stated at [90] that: "This can be done by a modification of the consent and the issue of a construction certificate in accordance with the modified consent."
The modification application that is now before the Court was then lodged with the Council on 20 April 2022.

The scope of the modification application

Whilst the modification application, as originally lodged, included changes to the design approved by the development consent so as to retain aspects of the as-built structure, it is now confined to those design changes described at [2] to the inclinator landing and stair access on the western side of the dwelling, to the ground floor where a window is now proposed in lieu of a door, and the introduction of new open timber stairs with open timber balustrade at the rear of the property.
The plans that are the subject of the modification application make it clear that:

No development is proposed beyond the boundaries of the site, other than the works within the easement for the inclinator platform.
The location of the lift and stairwell is not sought to be varied by the modification application, and the carrying out of works in accordance with the modified consent will require their relocation to be consistent with the plans approved by the development consent.
There is a retaining wall on the site that was constructed not in accordance with the consent, and it will remain on the site post-development.

The abovementioned retaining wall is already in existence and does not form part of the works sought to be approved by the modification application. It has the benefit of a Building Information Certificate issued 21 June 2023, which prevents the Council from ordering or commencing proceedings seeking that the wall be repaired, demolished, altered, added to or rebuilt.
The agreed conditions to be imposed on the grant of the modification application include a condition that all works are to be located wholly within the subject site, except for those allowed under an easement, and that no approval is given for any pre-existing structures on site.

The assessment framework

The modification application is made pursuant to s 4.55(2) of the EPA Act, and, on appeal, the Court exercises the function of the consent authority in determining the application.
The exercise of the power in s 4.55(2) depends upon a number of pre-conditions. The first requires that the Court 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", pursuant to s 4.55(2)(a). The second is that the application is notified, and that the Court, exercising the functions of the consent authority, has considered the submissions made concerning the proposed modification.
Upon reaching the satisfaction of these pre-conditions, subs (3) provides that: (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.
Section 4.15(1)(a) of the EPA Act requires that the Court consider the provisions of any applicable environmental planning instrument, development control plan, planning agreement, certain draft instruments and regulations, as well as the likely impacts of the development.
The site is located in the C3 Environmental Management zone, pursuant to the Manly Local Environmental Plan 2013 (MLEP), in which dwelling houses are permissible with development consent. The height development standard that applies to the site is 8.5m, and the dwelling approved by the original development consent breaches the height development standard. There is no change to the height, floor space or setbacks of the dwelling house as a result of the modification application.

The preconditions in s 4.55(2) are satisfied

Consistent with s 4.55(2)(a) of the EPA Act, I am 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. I reach this conclusion on the basis that the application relates only to ancillary aspects of the dwelling house: the change from a door to a window, the changes to the inclinator landing and stairs, and the introduction of new timber stairs to the rear. The dwelling house otherwise remains of the design, height and scale approved. It remains for the purpose of a dwelling house, with no change to its internal configuration, floor space or height. There is no essential element of the development that is being changed by the modification application.
Accordingly, the development, as modified, will be substantially the same as the development for which consent was originally granted, based on both a quantitative and qualitative assessment.
The modification application was notified by the respondent between 24 June 2022 and 8 July 2022 in accordance with s 4.55(2)(c) of the EPA Act. In response to the notification of the application, three submissions were received. I have considered the issues raised in those submissions.
Further, I note that, consistent with the requirements of s 100(3)(a) of the Environmental Planning and Assessment Regulation 2021, the modification application was accompanied by a BASIX certificate.
Consistent with the requirement of s 4.55(3), I have reviewed the development assessment report from the grant of DA127/06 and considered the applicable provisions of the MLEP and the Manly Development Control Plan 2013. Given the confined scope of the modification application, none of the provisions warrant close consideration.

The expert evidence

Expert town planning opinion evidence was given in a joint report Mr Philip North, a town planner engaged by Zoro, and Mr Maxwell Duncan, a town planner employed by the Council. Their evidence is considered below, in the context of the contentions raised by the Council.

Each of the contentions raised by the Council has been resolved

As a result of the now limited scope of the modification application and the issue of a building information certificate concerning the retaining wall that will remain on the site, the Council now agrees that each of its contentions has been resolved. This is supported by the evidence of Mr North and Mr Duncan.

Unauthorised works (Contention 1)

As set out in the Statement of Facts and Contentions dated 1 November 2022, the Council raised a contention that the modification application could not retrospectively approve works that had already been carried out. Mr North and Mr Duncan agree that the plans that are now the subject of the modification application make it clear that the works that have been carried out, including the retaining wall and piers, do not form part of the modification application. As such, the Council agrees, and I accept, that this contention is resolved.

Unapproved works (Contention 2)

The second contention raised by the Council was that the modification application relied on unapproved works "which have not been regularised and which may not comply with the Building Code of Australia" (Ex 2). In particular, the Council was concerned that the retaining wall, which is to remain on the site following the carrying out of the works the subject of the proposed development as modified, may not be structurally adequate.
In their joint report, Mr North and Mr Duncan agreed that this could be resolved by the applicant obtaining a building information certificate concerning any structures that are proposed to be retained on the site. The structure that is to remain is the retaining wall, marked in blue in the modification application plans, and is now the subject of the Building Information Certificate issued by the Council on 21 June 2023. As part of the application for that certificate, a structural certificate was provided by engineer Mr Bachmann which confirms that it complies with the relevant Australian Standards and the Building Code of Australia, and is considered adequate to withstand the expected design loadings.
The parties agree that with the issue of the Building Information Certificate, this contention is resolved. I accept that, with the issue of the Building Information Certificate and the details in the application in support of that certificate confirming its structural stability, there is no issue with the retaining wall remaining onsite or its structural stability, and this contention does not warrant refusal of the development application.

Encroachments onto adjoining property (Contention 3)

The Council raised a contention that the proposed development, as sought to be modified, included works on adjoining land and was not accompanied by the consent of the owner o f that land.
Mr North and Mr Duncan agree that the plans that are now the subject of the modification application delete all encroachments onto neighbouring properties not covered by the easement, and that, therefore, the proposed development as modified would not encroach on the adjoining properties. Mr North and Mr Duncan have agreed on conditions of consent to be imposed on the grant of the modification application to ensure that no encroachments remain following the carrying out of the development, which are contained in conditions B, C and F of Annexure A.
I therefore accept that this contention is no longer an issue, and that the development, once carried out in accordance with the plans the subject of the development consent as modified, will not include any encroachments onto adjacent property outside of the area of the easement. By extension, this means that any current encroachments can be understood as being temporary and/or not authorised by the development consent.

Building height (Contention 4)

The Council's contention, as expressed in the Statement of Facts and Contentions, was that the height of the dwelling house is excessive and results in an unreasonable level of bulk and scale.
However, Mr North and Mr Duncan agree that the modification application, as now proposed, does not make any change to the height of the development. Therefore, any breach of the height development standard approved in the grant of the development consent is not increased by the modification application, and this contention therefore does not warrant refusal of the modification application.

Setbacks (Contention 5)

The Council contended, in its Statement of Facts and Contentions, that the modification application should be refused as the modified development would not have adequate setbacks and separation between buildings and to side boundaries.
However, Mr North and Mr Duncan agree that with the amended plans that are now the subject of the modification application, there is no unreasonable increase into the approved setbacks. I accept their evidence, and that this contention has been resolved through changes to the plans that occurred prior to the hearing.

Privacy (Contention 6)

It was also contended by the Council that the modification application should be refused as the proposed development will have unacceptable impacts on privacy. This arose due to overlooking from the proposed west facing window, from the west facing terrace originally proposed in the modification application and the proposed inclinator. Mr North and Mr Duncan agree that the amended plans which are now the subject of the modification application delete the terrace and the new inclinator location such that original concerns with respect to overlooking from those viewing points no longer arise.
With respect to the sightlines from the west facing window, Mr North and Mr Duncan have agreed on a condition of consent that requires a design change to the size of the window, requiring it to have a minimum sill height of 1.6m above the finished floor level or be fitted with frosted glazing below 1.6m. They agree that with this condition, the contention concerning impacts on privacy is resolved. I accept their position and that there is no unreasonable impact on the privacy of the adjoining neighbours as a result of the modification application.

Public interest and Insufficient Information (Contentions 7, 8 and 9)

The Council also raised contentions with respect to the public interest as a result of issues raised by the objectors, as well as with respect to insufficient information concerning the details on the plans and the compliance of existing structures with the National Construction Code and the Building Code of Australia.
The issues raised by the objectors concern the height of the building and the number of storeys, the access to and design of the car parking hardstand, the encroachments by existing structures, and breaches of the original development consent. None of these issues warrant refusal of the modification application, which is of small compass and does not change the access to and design of the car parking, the approved height and the number of approved storeys. Similarly, the modification application does not seek to retain structures that encroach on neighbouring land, and the grant of the application will not authorise those existing structures to remain.
Mr North and Mr Duncan agree that the detail identified as being lacking through contention 8 is now provided in the plans the subject of the modification, and the parties agree that contention 9 is now resolved through the issue of the Building Information Certificate and the structural certificate that accompanied the application for the Building Information Certificate.
I therefore accept that each of the matters raised in contentions 7, 8 and 9 have been resolved and none of those contentions warrant refusal of the modification application.

Final orders

For the reasons expressed above, each of the contentions raised by the Council has been resolved and there is nothing that warrants refusal of the modification application. Each of the pre-conditions to the grant of a modification application pursuant to s 4.55(2) of the EPA Act have been satisfied. As such, the modification application ought to be granted subject to conditions, which results in a modified development consent that will now apply to the site.
The Court orders that: 1. The appeal is upheld. 2. The development consent DA127/06 for the construction of a new detached dwelling with double car hard stand, inclinator, and landscaping works at 67 Seaforth Crescent, Seaforth, is modified in the terms in Annexure A. 3. Development consent DA127/06 as modified by the Court, is Annexure B. 4. Exhibits 4 and 6 are returned, the remaining exhibits are retained.

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: 27 September 2023

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Judgment (16 paragraphs)

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