Land and Environment Court New South Wales Medium Neutral Citation: Platform Project Services Pty Ltd v Mosman Municipal Council [2021] NSWLEC 1696 Hearing dates: Conciliation Conference 1 November, Hearing 2 November 2021 Date of orders: 18 November 2021 Decision date: 18 November 2021 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is dismissed. (2) Modification Application 8.2018.20.6, which seeks to amend DA 8.2018.20.1 by the rebuilding of specific walls on both the ground and first floor is determined by way of refusal. (3) The exhibits are returned with the exception of A, B and 2. Catchwords: MODIFICATION APPLICATION – amendments sought to an existing consent for alterations and additions to a residential dwelling – whether the development is substantially the same development – appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979, ss 1.5, 4.55, 8.9 Environmental Planning and Assessment Regulation 2000, cl 121B(1) Land and Environment Court Act 1979, s 34AA Mosman Local Environmental Plan 2012 Cases Cited: Arrage v Inner West Council [2019] NSWLEC 85 Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 Texts Cited: Mosman Development Control Plan 2012 Category: Principal judgment Parties: Platform Project Services Pty Ltd (Applicant) Mosman Municipal Council (Respondent) Representation: Counsel: M Seymour (Applicant) M Astill (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/251154 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal by the Applicant against the deemed refusal of their modification application (8.2018.20.6) by Mosman Municipal Council (the Respondent). The Applicant filed a Class 1 Application, appealing the refusal of the modification pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The approved development application, which the Applicant seeks to modify, provides consent for 'alterations and additions to a dwelling house comprising demolition of a swimming pool and driveway, conversion of the garage to gym and store, construction of a new garage, lift, swimming pool, driveway and landscaping works"(DA 8.2018.20.1). The modification application seeks to amend that consent by the rebuilding of specific walls on both the ground and first floor. The works proposed under the Modification Application are particularised below at [4]. The development is proposed at 6 Balmoral Avenue, Mosman (Lot A in DP 337084). 2. The appeal was subject to mandatory conciliation on 1 November 2021 (s 34AA of the Land and Environment Court Act 1979 (LEC Act)), however agreement was not reached, and conciliation was terminated. The proceedings were dealt with as a hearing. The parties consented to the admission of evidence heard during the onsite view in the hearing (s 34AA(2)(b)(ii) LEC Act). 3. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the modification application pursuant to s 4.55 of the EPA Act. That power is subject to conditions. In these proceedings, the principal contention relates to the satisfaction of the precondition at s 4.55(2) of the EPA Act, namely whether the development proposed in the modification application is substantially the same development as that approved under the development consent DA 8.2018.20.1 (the development consent). 4. With the consent of the Respondent, the Applicant was granted leave by the Court at the commencement of the hearing to amend the Modification Application. Broadly, the Applicant has made the following amendments to the Modification Application: 1. Deletion of any reference to seeking retrospective approval for demolition. The modification application, as modified, only seeks consent for prospective works; 2. Clarifying the scope of the modification to be only the following works: "Ground floor (a) Rebuilding of NIB wall grid line 4C; and (b) Rebuilding of part of wall between W2.10 and W2.11 adjacent to grid line E. First floor (c) Rebuilding of part of western stair wall to stair well adjacent grid line 3; (d) Rebuilding of sections at W3.2, W3.3 and W3.4 (e) Rebuilding of sections of eastern wall along grid line D to the master ensuite, robe, bedroom; and (f) Rebuilding of section of internal wall along grid line "C" to the west of the master ensuite and robe." (Exhibit B) 1. A recent amendment to the Environmental Planning and Assessment Regulation 2000 (the Regulation) facilitates an applicant amending their modification application. Specifically cl 121B(1) provides: An application for a modification of a development consent, may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging an amendment on the NSW planning portal. 1. In these proceedings the Respondent has agreed to the Applicant amending their modification application. Following the grant of leave, the Court has been notified that the amended modification application has been lodged on the NSW planning portal. As such the requirements of cl 121B of the Regulation are met. Issues 1. Despite the amendments and provision of additional information, the Respondent maintains the modification application warrants refusal on the basis that the proposed development is not substantially the same as he development approved under the original consent, thus failing to satisfy the precondition contained in s 4.55(2) of the EPA Act. The Respondent argues that the modification application should be refused on this basis. Site and Locality 1. The site is located on the southern side of Balmoral Avenue, between Raglan Street and Redan Street in Mosman. The site is irregular in shape, has a frontage of 22.275m to Balmoral Avenue and has site area of 1066.7sqm. The site falls approximately 7.68m to the south. 2. The subject site is identified in the following aerial photograph, noting that this extract shows the pre-existing dwelling and pool which are no longer evident on site: (www.sixmaps.nsw.gov.au) 1. The site is presently a construction site with the basement, lower ground and ground floor levels of the dwelling currently under construction on the site. The first floor and attic levels have been demolished. 2. Immediately to the west of the site is 8 Balmoral Avenue. It contains a large detached elevated dwelling which is located towards the western boundary of the property. Proximate to the eastern boundary of 8 Balmoral Avenue, the common boundary with the subject site, is a swimming pool and the private open space of the dwelling. 3. Immediately to the east of the site are two smaller properties, being 2 and 4 Balmoral Avenue. The development on 4 Balmoral Avenue is a detached dwelling house of 2-3 storey construction. The dwelling is in relatively close proximity to the common boundary with the site and projects forward of the previously existing dwelling on the site. The development on 2 Balmoral Avenue is a detached dwelling house of 2-storey construction. The dwelling fronts the intersection of Balmoral Avenue and Raglan Road, which occurs at a splayed angle. The dwelling is in relatively close proximity to the common boundary with the site and projects well beyond the rear façade of the previously existing dwelling on the site. 4. The dwelling houses to the west of the site enjoy views across the site to the Harbour. 5. The subject site, and the surrounds, are zoned R2 Low Density Residential under Mosman Local Environmental Plan 2012 (LEP 2012). Public Submissions 1. The original form of the modification application was advertised and notified to surrounding properties between 27 July 2021 and 11 August 2021. Six submissions were received. Those objections broadly raise the following issues with the modification application: 1. That the outstanding compliance (Stop Work Order and Written Directions Notice) on the site should be resolved prior to any grant of consent to the modification application. 2. That the development does not comply with the key planning controls under LEP 2012. 3. The 4-5 storey height of the development is uncharacteristic in the locality. 4. That the Applicant should be requested to install height poles to allow an accurate assessment of any view impacts to neighbouring properties. 5. The existing building on the site was already uncharacteristic, overly bulky and 'an eyesore'. The alterations and additions consent should not have been granted. 6. The walls proposed to be rebuilt or altered on ground floor, level one and the attic no longer exist on site so therefore a modification application is inappropriate. The Applicant should be requested to submit a development application for these works. That development application should be subject to the development standards for height, floor space ratio etc in LEP 2012 and the Mosman Development Control Plan 2012. 7. The proposed modification impacts greatly on the views of many neighbouring homes. 8. The documents supporting the modification application are confusing and inconsistent with each other. 9. Seeks confirmation from Council whether the stop work order in place restricting and/or preventing work proceeding on the fourth floor (attic) will remain in place regardless of any approval of the modification application. 1. In addition to the preceding submissions, a number of residents provided oral submissions to the Court outlining their concerns with the modification application. The additional concerns raised can be summarised as: 1. That the current modification application should not be considered in isolation, but that the Court should also consider the enforcement pending on the site and the cumulative impacts of the previous modification applications. 2. The plans supporting the application continue to be inconsistent which makes it unclear what is proposed to be approved. 3. The original application was for very minor alterations and additions to the existing dwelling which was proposed to be nearly 100% retained. This is not what has occurred or is proposed to occur in the proposed modified consent. 4. Given the proposed development is no longer alterations and additions to a retained dwelling, the house should be built in accordance with the current planning controls and requirements. 5. Given demolition occurred prior to the issue of the second Construction Certificate, retrospective approval for the demolition works should not be given as it is contrary to the recent decision of the Court of Appeal. (I note that this is a reference to the decision in Ku-ring-gai Council v Buyozo Pty Ltd [2021] NSWCA 177 (Buyozo)). 6. As the final dwelling is proposed to be painted white, it will be a large 'white elephant' that is inconsistent with the character of the locality. 1. In determining the modification application, I have read and considered the submissions received from members of the public: s 4.55(2)(d) of the EPA Act. Is the development as proposed by the modification substantially the same as the development in the original consent? 1. The modification application is made pursuant to s 4.55(2) of the EPA Act (Exhibit A). In order to grant consent to the modification application, at subs (a), the Court is required to be satisfied, firstly '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)'; secondly, at subs (b), that any concurrence or approval bodies who provided input into the development application have been consulted; thirdly, at subs (c), that the modification application has been notified; and finally, at subs (d), any submission has been considered. The Respondent only remaining contention in the proceedings is that the precondition at s 4.55(2) (a) of the EPA Act is not met. 2. In order to grant consent to the modification application, the consent authority must be satisfied that the proposed development 'is substantially the same development' as the originally approved development: s 4.55(2)(a) of the EPA Act. As described by Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) at [18] the process of assessing such satisfaction is focussed on the language of the statute, which is extracted below: (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 … Expert evidence 1. In these proceedings, the Court was assisted by planning evidence from Mr Scott Barwick, town planner for the Applicant and Ms Kerry Gordon, town planner for the Respondent. The experts prepared a joint report that was tendered in the proceedings as Exhibit 3. 2. The two experts take differing approaches to the statutory test. Mr Barwick's evidence focuses on the consistency between the outcome of the implementation of the development consent and its quantitative and qualitative consistency with the outcome of the implementation of the development consent as modified by the modification application. His reasoning can be seen in the following: "33. To determine [whether] the application is substantially the same consideration needs to be given [to whether] that the development as proposed to be modified will be essentially or materially or have the same essence as the development consent originally approved. 34. DA8.2018.20.1 approved a dwelling house with 3 levels of accommodation plus an attic level, basement car park and a new development. 35. Modification application 8.2018.20.6 if approved will result in a dwelling house with 3 levels of accommodation plus an attic level, they spent carpark and new swimming pool. The essence of the application as proposed to be modified is not changed from the essence of the development consent originally granted. … This modification application 8.2018.20.6, if approved, would provide for the identical accommodation and built form as that modified by modification application 8.2018.20.3. 38. The current modification application, 8.2018.20.6, which if approved, would result in a building of the identical form and accommodation to that approved under modification application 8.2018.20.3. That there would be more new building fabric is irrelevant as the retention of existing building fabric was not a fundamental determinative consideration in the original development application or subsequent modification application determinations. … 40. When modification application 8.2018.20.3 was approved the consent as modified became the consent, and therefore demolition indicated became the consent. … 41. In comparing the built form, configuration and accommodation of the dwelling house originally approved by development application 8.2018.20.1 and the built form, configuration and accommodation of the dwelling house accommodation that would result if modification application 8.2018.20.6 is approved is essentially of the same essence then the conclusion can be reached that the development as proposed to be modified is substantially the same development." (Exhibit 3) 1. In contrast, Ms Gordon emphasises that the test in s 4.55(2) of the EPA Act requires an evaluation that compares the development originally approved (the development consent) to the development that would be approved if the modification application is granted consent. She states, "for the purposes of this consideration, the difference between the development approved by previous modification applications and the development that would be approved as a result of modification 8.2018.20.6 is not relevant" (Exhibit 3). Her analysis can be summarised as firstly identifying the development approved under the development consent and then the development that would be approved if the modification application is granted consent; and secondly undertaking a quantitative and qualitative comparison of those two developments. 2. Utilising the definition of "development" at s 1.5 of the EPA Act, Ms Gordon describes the development approved under the development consent as: "– construction of the new garage; – construction of a new swimming pool; – construction of stairs and lift connecting the new garage to the existing dwelling (involving very minor alterations to the existing dwelling); – landscaping the front yard, including new paths and retaining structures; – conversion of the existing garage into a habitable space (involving very minor alterations to the existing dwelling)." (Exhibit 3) 1. Ms Gordon undertook the same process, describing the development that would be approved under the modification application as: "– almost wholesale demolition of the existing dwelling, including floors, roof, the entirety of the 1st floor an attic level and most of the ground floor; – wholesale removal of structures and landscaping surrounding the dwelling with the exception of a retaining wall along the western boundary; – construction of a new dwelling, utilising a few walls of the previous existing dwelling (with a different internal layout and extending close to the street at 1st floor level); – conversion of the existing garage into habitable space (involving alterations to the existing garage level); – construction of a new garage; – construction of a new swimming pool (in a different location to that originally approved); – construction of stairs and lift connecting the new garage to the proposed dwelling; and – landscaping of the entire site, including new paths and retaining structures." (Exhibit 3) 1. Secondly, Ms Gordon undertakes a qualitative and quantitative assessment of the two comparators and emphasises the following: * that the development approved under the original consent predominantly involved new construction in the front yard of the subject site, with only minor works to the existing dwelling. In contrast, the development that would be approved under the modification application encompasses works across the whole of the site. * The original consent involved no demolition of internal walls, floors or roofs of the existing dwelling. In contrast, Ms Gorton's evidence is that: "51. Based on my calculations, the development for which approval would be given with Modification 8.2018.20.6 would result in the demolition of the entire northern open bracket front) facade and approximately 77% of the eastern facade, 54% of the Western facade and 84% of the Southern facade, along with the roof and parts of the floor slabs. The entire 1st floor an attic level would be demolished. … 54. The approved development changes from what is largely works ancillary to and forward of the existing dwelling, with minor works to the dwelling, whilst the modified development is redevelopment of the entire site, substantive demolition of the existing dwelling and construction of a new dwelling, garage and swimming pool. 55. In KG's opinion the 2 above-described developments are not substantially the same. The size and nature of the development works proposed have significantly changed as has the essence of the development works." (Exhibit 3) 1. Ms Gordon concludes that the size, scope and nature of the two developments described at [23] and [24] are significantly different in the quantity (both the extent of work, demolition and the replanning of the existing house), focus (from being predominately external to the existing house, to almost the entirety of the block) and essence of the development (from alterations and additions to essentially a rebuilding project). 2. I note these calculations encompass the scope of the modification application prior to its amendment, see [4]. I have taken this into account in considering the evidence of the planning experts. Submissions 1. Mr Astill, for the Respondent embraces the approach and evidence of Ms Gordon. He draws the distinction between firstly, the development able to be lawfully carried out on the site (that approved by various modifications to the original consent and the construction certificates issued) and secondly, the development approved by the development consent which is the relevant comparator pursuant to s 4.55(2) of the EPA Act. He argues: "6. The AS from [20]-[23] refers to several earlier approved modifications to the original consent and to several construction certificates that have been issued. It is correct to say that these taken together represent the development that may be lawfully carried out on the site. 7. However s4.55 is crystal clear that the relevant comparator for the purpose of the substantially the same test, is not that development at only that originally approved. 8. Further, by operation of s 4.16(12) any development that is deemed to be incorporated into a consent by the issue of a construction certificate is not to be included in the consideration. For ease of reference the provision reads (underlining added) – 12. Effect of issuing construction certificate If a consent authority or a registered certifier issues a construction certificate, the construction certificate and any approved plans and specifications issued with respect to that construction certificate, together with any variations to the construction certificate or plans and specifications that are effected in accordance with this Act or the regulations, are taken to form part of the relevant development consent (other than for the purposes of section 4.55)." (Respondent's written submissions p 1, 2 November 2021) 1. In support of his submissions, Mr Astill relies on the decision of the New South Wales Court of Appeal in Buyozo at [56] which states that "the relevant comparison is the development and not the consent that is required to be substantially the same". He concludes that on the evidence of Ms Gordon the Court would not be satisfied that the precondition at s 4.55(2) of the EPA Act is met. Therefore, he argues, the Court has no power to approve the application and it should be refused on this basis (Respondent's written submissions p 3, 2 November 2021). 2. In the alternative, Mr Seymour for the applicant makes the following submissions. Firstly, relying on the decision of Preston CJ in Arrage at [24], the comparison required by s 4.55(2) of the EPA Act is between two developments where development is understood to include a series of activities. Mr Seymour details what he says is the correct approach to s 4.55(2) of the EPA Act and the expert evidence as follows: "27. The differences in approach concerning Mr Barwick and Ms Gordon "flow from different understandings of the concept of "development". If "development" is simply limited to construction activities, then Ms Gordon relies on there being more construction activity over more of this site in order to say that the two grouping[s] of activities are different. 28. With respect to a dwelling, the development is not limited to construction activity. The approval of the built form also permits the use: s4.19 EPA Act. The development approved by the consent as originally granted is not limited to "works" that are relied on by Ms Gordon. There is also the "use of land" for the purposes of the definition of the term in s1 .5. It is difficult to see that "use of land" is somehow notionally limited to only those parts of the site wholly conterminous with the original works. 29. That use must therefore be considered. Even if consent as originally granted is seen as permitting only a limited degree of construction activity it still involved and endorsed a residential use occurring over the built form and across the site." (Applicant's written submissions p. 4, 29 October 2021) 1. On this basis, and on the fact that the Respondent raises no merit contentions, Mr Seymour argues the Court has the power to grant consent to the modification application and should do so. Consideration and Findings 1. In undertaking the comparison between the development that was the subject of the original grant of consent (8.2018.20.1) and the development as proposed to be modified by the modification application, I am not satisfied that the test at s 4.55(2)(a) of the EPA Act is met. I conclude that the proposed modified development differs, both quantitatively and qualitatively, from the originally approved development and that such differences will result in the proposed modified development not being substantially the same as the originally approved development. My reasoning follows. 2. The term 'development' is defined at s 1.5 of the EPA Act as follows: 1.5 Meaning of "development" (cf previous s 4) (1) For the purposes of this Act, development is any of the following— (a) the use of land, (b) the subdivision of land, (c) the erection of a building, (d) the carrying out of a work, (e) the demolition of a building or work, (f) any other act, matter or thing that may be controlled by an environmental planning instrument. (2) However, development does not include any act, matter or thing excluded by the regulations (either generally for the purposes of this Act or only for the purposes of specified provisions of this Act). (3) For the purposes of this Act, the carrying out of development is the doing of the acts, matters or things referred to in subsection (1). 1. As detailed in Arrage at [24], comparison required by s 4.55(2) is between two developments – the development as modified and the development as originally approved: see also Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 (Scrap Realty) at [16]. The first appropriate referent for the comparison required by s 4.55(2) of the EPA Act is the development consent DA 8.2018.20.1. That development consent, when read with the approved plans and documentation (listed at condition 1), approved the following development: "Demolition - Removal of the existing driveway - Demolition of sandstone wall on front (northern) boundary of the property - Removal of existing stairs from street frontage to dwelling adjacent to western boundary. - Removal of retaining wall adjacent to eastern side boundary of the site. - Removal of low retaining wall associated with garden at front of existing dwelling and on the western side of the site. - Removal of low retaining wall in backyard. - Demolition of internal wall adjacent to existing stairs from current garage to ground floor level. - Removal of balustrading adjacent terrace on ground floor level. - Partial demolition of wall at entry on ground floor. - Partial demolition of external wall adjacent to media area on first floor, Swimming Pool - Demolish existing pool - Construction of new swimming pool Garage and Retaining wall - Construction of new semi-basement garage and storage area with associated sandstone retaining wall. Minor alterations to existing dwelling - New entry stairs, void and lift to lower ground floor providing access and egress from new garage. - Provision of a new lift void from lower ground floor to the first-floor level. Landscaping - New low sandstone wall in backyard. - New stairs from street frontage to existing dwelling and associated solid balustrading. - New sandstone retaining wall and planter boxes on eastern and northern ends of the site and within setback area to proposed garage. - Substantial new soft landscaping in side and front setback in accordance with the landscape plan." (Exhibit 1, tab 5) 1. A geotechnical investigation, BASIX certificate, Statement of Environmental Effects and a written request to vary the floor space ratio standard form part of the consent. 2. I accept the evidence of Ms Gordon that the form of development proposed by the original consent was an addition to an existing dwelling, where the focus of works was primarily to the pedestrian and vehicle access, the swimming pool and terrace in the front setback, façade and external presentation of the dwelling. As noted in both the Statement of Environmental Effects for the development application and the assessment report, any internal works primarily related to the conversion of the existing garage into a recreation area and construction of a new basement level. The extent of new work proposed on the ground floor, first floor and attic levels are limited to the construction of a lift core and installation of a new lift. I agree and accept the evidence of Ms Gordon summarised at [24] in relation to the character of the original consent being one comprising minor works to the existing dwelling. 3. The original consent included the following condition: "31. All demolition work must be carried out in accordance with the provision of Australian Standard 2601: The Demolition of Structures. A demolition plan, consistent with the approved architectural plans must be submitted with the Construction Certificate application. Demolition is not to exceed that approved under this consent. The demolition plans are to be certified by a qualified practicing Structural Engineer, with membership of the Institute of Engineers Australia or who is eligible to become a member and has appropriate experience and competence in the related field, that all parts of the existing building that are shown to be retained on the approved plans can be retained, and that these components will withstand the proposed additional loads. If parts of the retained structure are required to be temporarily supported, details shall be provided and, if for structural or other reasons additional demolition and then rebuilding works are found to be necessary, consent for such works is to be obtained from Council." (Exhibit 2) 1. The development approved under the development consent was for the purpose of dwelling house, a permissible use in the R2 Low Density Residential zone. I am satisfied that the purpose sought under the modification application remains for that of a dwelling house. I note that the use of the newly erected building is also authorised under the development consent: s 4.19 of the EPA Act. The use of the existing dwelling was presumably authorised under an historic consent for the direction of that dwelling. 2. The second referent point for the test of 'substantially the same' at s 4.55(2) of the EPA Act is the development as proposed to be modified by the modification application: Arrage at [24] and Scrap Realty at [16]. The specific development sought by the modification application, as amended by the Applicant in the proceedings, is as follows: "Ground floor (a) Rebuilding of NIB wall grid line 4C; and (b) Rebuilding of part of wall between W2.10 and W2.11 adjacent to grid line E. First floor (c) Rebuilding of part of western stair wall to stair well adjacent grid line 3; (d) Rebuilding of sections at W3.2, W3.3 and W3.4 (e) Rebuilding of sections of eastern wall along grid line D to the master ensuite, robe, bedroom; and (f) Rebuilding of section of internal wall along grid line "C" to the west of the master ensuite and robe." (Exhibit B) 1. However, the 'development' as proposed to be modified by the modification application is, in my view, the development inclusive of the modifications to the development consent that have already been granted consent. In other words, the development which is the second referent in the comparison incorporates the amendments approved by previous modifications: Scrap Realty at [16]. However, it excludes any variations effected by the issue of a construction certificate: s 4.16(12) of the EPA Act. 2. On 16 September 2020, Modification Application No.8.2018.20.3 was approved for amendments of a dwelling house, changes to the basement garage, relocation of swimming pool, amendments to the front wall, landscaping works and new rear garden wall. By reference to the determination report for this application, it had the following scope: "Basement - Relocation of approved lift; - Relocation of the stair between the basement and lower ground floor; - Relocation of main access stair; - Relocation of pedestrian entry location with new double door; and - Tank and pool room to be extended towards street frontage. Lower ground floor - Relocation of approved lift; - Extension of spiral stair and basement stair relocation; - New front entry stair; - Relocation of front entry stair; - 1.2m high glazed pool fence; - Relocation of approved pool along eastern boundary; - Side wall of driveway to be demolished and replaced with a retaining wall for planter; - Replacement of existing internal door with glazed French door. Ground floor - New rear garden wall with seating and planting above; - New planter bed to the rear; - Existing door to be demolished; - Covered BBQ area with awning above; - Relocation of new lift; - Extension of spiral stair; - New main access stair; - New planter along the western boundary; - Proposed ground floor infill extension at western boundary; and - Proposed screening over new seating cut outs to the rear. First Floor - Proposed awning above windows along the western boundary; - New stair to attic; Relocation of approved lift; - Lift extension to be converted to en­suite; - First floor extension over existing boundary; - First floor balcony extension; - New operable louvres along eastern boundary above ground floor terrace; - New planting and retaining walls to existing balcony; - Planter over proposed rear garden wall along eastern boundary; and - Additional windows to be provided. Attic - Proposed new roof over first floor extension" (Exhibit 1, tab 10) 1. The Respondent's Statement of Facts and Contentions notes that '(s)ometime between 16 September 2020 and 22 January 2021 demolition of the entire first floor and attic level was carried out'. (Exhibit 2) 2. On 21 July 2021, Modification Application No.8.2018.20.5 was approved for amendments comprising part reinstatement of first floor slab, walls and balcony slabs; and completion of roof. By reference to the determination report for this application, it had the following scope: "First floor (a) Re-instatement of first floor slab to engineer details between grid lines 1 and 2 shown on plans DA104, DA102 and DA301; (b) Re-instatement of first floor external walls and openings consistent with the plans approved in 8.2018.20.3 between grid lines 1 and 2 shown on plans DA104, DA102 and DA301; (c) Re-instatement of balcony slab to engineer details between grid lines 1 and 2 shown on plans DA104, DA102 and DA301; and (d) Completion of roof between grid lines 1 and 2 consistent with approval in 8.2018.20.3." (Exhibit 2) 1. In construing the development as proposed to be modified by the modification application, I am not satisfied thatit remains consistent with the development for which consent was granted in the following essential ways: 1. The original consent had the character of being the alteration of an existing dwelling with the majority of the works focussed externally. The original development consent left the form, material and program of rooms of the existing dwelling essentially intact. This is no longer the case. The development as proposed to be modified by the modification application is, in my view, no longer development which comprises the retention of the materiality of the existing dwelling nor its program of rooms. For example, a comparison of the floor plans of the Ground Floor between the development for which consent was granted and the development proposed to be modified by the modification application demonstrates that the following elements of the dwelling have been relocated: the kitchen, the vertical circulation, and the location of Bed 1. A similar analysis can be undertaken for the first floor where, in my view, the changes are more material. The extent and scope of development proposed to be modified by the modification application, in my view, bears no resemblance either quantitatively or qualitatively to the original consent. 2. The internal areas of the existing dwelling were previously subject to minor works. In the approved plan, the structure and rooms of the existing dwelling were predominately noted as 'existing' and demarcated as 'existing structure to be retained'. I accept the evidence of Ms Gordon, summarised at [23]-[25], that the new structures in the front yard (new garage, swimming pool and retaining walls and stairs) were the most significant component of the development within the original consent and that 'with the connection of the garage and new stairs to the dwelling house and change of use of the garage being ancillary to those works, resulting in minor alterations and additions to the front north-west corner of the dwelling for the new stairs and lift to the existing garage' (Exhibit 3). In my view, the essence of the development for which consent was granted (alterations and additions) is sought to be modified by the modification application to the extent where it is not possible, in my view, for it to be substantially the same. The development as modified is, in my view, at its essence, a new construction. 3. In my view, s 4.55(2) of the EPA Act, on its terms, requires a comparison between the original consent and the development as modified, ensuring that the effect of successive modification applications is not the radical transformation of the development by incremental changes. I disagree with the approach of Mr Barwick on these grounds. In my view, the current modification application, if granted consent, would approve development which bears little resemblance to the original consent. 1. Applying Scrap Realty at [14] '… the power of a consent authority to "modify" a consent is a power to alter without radical transformation the consent'. For the preceding reasons, I find that I am unable to give effect to the modification power as the test at s 4.55(2) of the EPA Act is not satisfied. 2. Following an assessment of the modification application against the relevant planning provisions, I find that it warrants refusal as the precondition at s 4.55(2) is not satisfied. Orders 1. The Court orders that: 1. The appeal is dismissed. 2. Modification Application 8.2018.20.6, which seeks to amend DA 8.2018.20.1 by the rebuilding of specific walls on both the ground and first floor is determined by way of refusal. 3. The exhibits are returned with the exception of A, B and 2. ………………………… D M Dickson 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. Decision last updated: 18 November 2021