Land and Environment Court New South Wales Medium Neutral Citation: 193 Liverpool Road Pty Ltd ACN 163231810 v Inner West Council [2022] NSWLEC 1197 Hearing dates: 18 and 19 November 2021 Date of orders: 12 April 2022 Decision date: 12 April 2022 Jurisdiction: Class 1 Before: Espinosa C Decision: The Court orders: (1) The appeal is dismissed. (2) All exhibits are retained. Catchwords: DEVELOPMENT APPEAL – modification application – boarding house – substantially the same – multiple previous modifications – orders Legislation Cited: Ashfield Local Environmental Plan 2013 Environmental Planning and Assessment Act 1979, s 4.55 State Environmental Planning Policy (Affordable Rental Housing) 2009, cl 29, 30 Cases Cited: 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 193 Liverpool Road Pty Ltd v Inner West Council [2020] NSWLEC 1098 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Arco Iris Trading Pty Ltd v North Sydney Council [2015] NSWLEC 1113 Arrage v Inner West Council [2019] NSWLEC 85 Gales-Kingscliff Pty Ltd v Tweed Shire Council (No. 2) [2007] NSWLEC 817 Horseshoe Properties Pty Ltd v Tweed Shire Council [2021] NSWLEC 1507 Scrap Realty Pty Limited v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 Texts Cited: Comprehensive Inner West Development Control Plan 2016 Category: Principal judgment Parties: 193 Liverpool Road Pty Ltd ACN 163231810 (Applicant) Inner West Council (Respondent) Representation: Counsel: L Nurpuri (Applicant) J Farrell (Respondent) Solicitors: Addisons (Applicant) Inner West Council (Respondent) File Number(s): 2021/216191 Publication restriction: No Judgment 1. COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an application to the Court to modify a development consent DA10.2016.65.1 granted by the Court on 1 March 2017 in the matter of 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13, for a mixed use development comprising one retail shop, one residential apartment and thirty-eight units of boarding house accommodation in a part three-storey, part eight-storey development (2017 Consent) at 193 Liverpool Road Ashfield, legally described as Lot A of DP 441552 (the Site). 2. Pursuant to leave of the Court on 28 October 2021, the amended modification application seeks approval to modify the development consent DA10.2016.65.1 by the following suite of modifications (Proposed Modification): 1. Removal of the smaller north facing communal room on level 3 and replacement with an additional boarding room increasing the total number of boarding rooms from 44 to 45; 2. Moving the boarding house laundry from level 3 to the ground floor bike storage area; 3. Replacing deleted bike spaces with wall mounted bicycle racks on balconies of some rooms; 4. Removal of the privacy screens from the northern façade; 1. I note that the town planning experts agree that this aspect of the Modification Application raises no concerns and they agree that the approved privacy screens do not actually provide privacy and that their removal will increase solar access. 1. Increase to the size of room 1.03 by enclosing part of the courtyard; and 2. Extension of the main common room on level 3 over the space that contained the communal laundry. 1. There are four previous modifications to the 2017 Consent. 2. The parties rely on, and I have been assisted by the Joint Expert Report Town Planning filed 11 November 2021 prepared by Glen Hugo, Planner for the Respondent and Will Nino, Planner for the Applicant (Exhibit 3). Mr Nino also gave further oral evidence during the proceedings during cross examination. 3. The parties were not able to agree on Draft/Proposed Conditions of Consent so the Respondent filed Draft/Proposed Conditions of Consent on 16 November 2021 (Exhibit 4) and the Applicant's Draft/Proposed Conditions of Consent are marked Exhibit O. 4. The hearing commenced with an onsite inspection of the partially constructed building including the following areas: 1. Ground floor area for the proposed laundry and bike rack area; 2. Western window from proposed enlarged common room; 3. Common rooms; and 4. Rooms 3.03 (south facing room), 2.06, (display room which is north facing), 2.07 (accessible room, south facing below outdoor space and common room), 1.08 (Respondent expressed concern about solar access). 1. The Respondent's case is set out in the Amended Statement of Facts and Contentions filed 1 November 2021 (ASOFAC) (Exhibit 2) and written submissions filed 19 November 2022. The Respondent submits that the Court would refuse the Proposed Modification for two primary reasons. The first reasons the Court would refuse the Proposed Modification is the jurisdictional prerequisite question as to whether 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. The ASOFAC contends that based on a comparison of the development approved by the 2017 Consent and the Proposed Modification, the consent authority would not be satisfied that the approved modification would be substantially the same development as the development for which consent as originally granted on 1 March 2017 by the Land and Environment Court for a mixed use development comprising one retail shop, one residential apartment and 38 units of boarding house accommodation in a part three-storey, part eight-storey development ("2017 Consent"). 2. The second primary reason the Respondent submits that the Court would refuse the Proposed Modification is that on merit, the Proposed Modification would result in unsatisfactory planning outcomes as a consequence of a significant reduction in solar access in the reconfigured common room area because of the inferior outcome for residents of the development and because of the consideration of the impact that the Proposed Modification will have on the potential redevelopment of land to the west of the Site. 3. The merit contentions in the ASOFAC are as follows: 1. Solar access and amenity - State Environmental Planning Policy (Affordable Rental Housing) 2009 (SEPP ARH), cl 29 (Contention 5); 2. Laundry introduces residential use to the ground floor in a commercial zone – SEPP ARH cl 30(1)(g) (Contention 7); and 3. Parking – Section 2, Chapter A, Part 8 of the Comprehensive Inner West Development Control Plan 2016 (IWDCP) and cl 29(2)(e)(iia) SEPP ARH (Contention 8). 1. The Applicant's case is set out in the Statement of Facts and Contentions in Reply (SOFACR) filed 4 November 2021 (Exhibit N) and written submissions filed 18 November 2021. The Applicant submits that "whilst the test in s 4.55 does not permit comparison between what it proposed and the consent as modified, it is noteworthy that following the first modification application, which increased the number of boarding rooms and deleted the one residential apartment, Council did not raise any concerns as to whether the development was substantially the same as that originally approved" (App written subs, para 14) and gives two reasons why it is noteworthy. The first reason it is noteworthy is because the modification (and subsequent modifications) forms the development consent seeking to be modified. The second reason the Applicant gives that it is noteworthy is because it provides a clear indication that the Respondent's assessment of the modification on a qualitative and quantitative basis concluded with it being substantially the same and relies on the decision of Commissioner O'Neill in 193 Liverpool Road Pty Ltd v Inner West Council [2020] NSWLEC 1098 at [5] where she held that "the development to which the consent was modified relates is substantially the same development as the development for which consent was originally granted because the changes to the development do not remove a critical element of the development consent." 1. The Applicant submits that Commissioner O'Neill's decision related to the first modification of the consent and that the second, third and fourth modifications were subsequently approved by the Respondent Council, each time forming the positive view that the development was substantially the same as the development for which consent was originally granted and refers the Court to the Respondent's Bundle, Exhibit 1, at folio 853, 915, 973. 2. I am unable to form the positive state of satisfaction 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. I give my reasons below and as the jurisdictional prerequisite has not been achieved the Court is not required to consider the merit contentions (decision of Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85 at [42] ("Arrage")) The Proposed Modification is not substantially the same as the 2017 Consent – jurisdictional prerequisite s 4.55(2) EPA Act (Contention 2) 1. The Respondent submits that as a preliminary legal issue, the Court would not be satisfied that the development to which the Proposed Modification relates is "substantially the same development" as the development approved by the 2017 consent. There is no dispute that the architectural plans have evolved significantly since the 2017 consent and the Respondent submits that these changes involve significant quantitative and qualitative changes and that "in a large boarding house, removal of a second separate common room with guaranteed solar access removes an essential element." (Respondent written submissions, par 5) 2. I have extracted from the ASOFAC in Part A on page 6, the description of the 2017 consent and the subsequent modifications as follows: "2017 Consent 1. The 2017 Consent was granted on 1 March 2017 by the Land and Environment Court for a mixed use development comprising one retail shop, one residential apartment and 38 units of boarding house accommodation in a part three-storey, part eight-storey development. Relevantly, it approved a. Two levels of basement parking with 8 car spaces and 1 motorcycle space b. Ground floor retail and parking for 28 bicycles and 6 motorcycle spaces c. On level 1 a shop top housing unit and five boarding rooms d. On level 2, the upper level of the unit and six boarding rooms e. On level 3, 2 common rooms, two boarding rooms, an outdoor area and shared facilities. MOD 1 2. The first modification of the 2017 Consent removed shop top housing, increased the number of boarding house rooms to 43, deleted one basement level and provided eight car parking spaces of which one is accessible and seven are in car stackers. It was approved by O'Neill C with a section 34 agreement on 05 March 2020 in case number 393484 of 2018. MOD 2 3. The second modification of the 2017 Consent reconfigured the ground level, relocated waste areas to ground floor, relocated the stacker in the basement, and approved several internal modifications. It was approved by the Respondent on 14 October 2020 in MOD/2020/0227. MOD 3 4. The third modification of the 2017 Consent amended the approved stormwater design to allow discharge to Murrell Street, Ashfield was approved by Council on 18/02/2021 in MOD/2020/0464. MOD 4 5. The fourth modification of the 2017 Consent reduce the size of the retail area, added water tanks on the ground floor, amended rooms 1.01 and 2.01 to be accessible rooms, reconfigured level 3 to increase the size of the south facing common room, reduced the size of the north facing common room and added an additional boarding room (total of 44), reconfigured boarding rooms on other levels was approved by Council on 18 February 2021 in MOD/2020/0486. MOD 5 6. The modification application the subject of these proceedings is the fifth proposed modification of the 2017 Consent. It was lodged with the Land and Environment Court on 28 July 2021." 1. The parties also agree on the content of Exhibit 5 being a table setting out the 2017 Consent and the subsequent modifications described above. I will come back to this table, or an extract of it when I undertake my assessment of the jurisdictional test. 2. The Applicant sets out its case regarding the 'substantially the same' test in the SOFACR as follows: "The changes represented by the relocation of the communal laundry to the ground floor, the consolidation of the communal living areas on level 3 and the additional boarding house room result in substantially the same development as that which was approved in 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13 (LEC 1). Particulars a. The number of approved modifications is not a relevant consideration for the Court under section 4.55(2)(a). b. In sum, the development as modified will be qualitatively and quantitatively substantially the same development as that which was approved in LEC 1, being a boarding house with ground level retail alongside supportive elements of the residential use, rear lane access and basement parking and communal outdoor and indoor areas located on level 3. The external appearance of the development as sought to be modified is largely the same as that which was approved in LEC 1. The development's GFA as sought to be modified is approximately 1.01% more than the GFA originally approved. c. The modifications following the granting of the original consent in LEC 1 are not relevant to the assessment of whether the modification is substantially the same as that which was originally approved. d. The consolidation of the level 3 indoor communal living areas and the common kitchen provides a total of 52m2 of communal areas, which represents an increase from that which was originally approved by the Court in LEC 1. e. The increase in size of the outdoor communal area from 38.19m2 to 45m2 in the present modification application permits the addition of BBQ facilities and additional seating. Neither change to the communal areas referred to above removes or substantially alters an essential element of the approved development in LEC 1. The Council did not raise the adequacy of communal areas in its 2018 SFC nor did Justice Moore refer to them in LEC 1. 4 f. Only the communal laundry has been relocated to the ground floor and this minor change does not result in a change to the essence of the development. There were always supportive elements of the boarding house on the ground floor, including the residential bin store, which was removed in MOD 1 and reinstated in MOD 2. The inclusion of the 7m2 laundry is a minor extension of this consistent arrangement." 1. As there is substantial disagreement between the parties, I set out the legal principles before undertaking the assessment of whether the Proposed Modification is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified. Legal principles that apply to the substantially the same test 1. The provisions of s 4.55(2)(a) of the EPA Act extends to enable the Court to modify a consent granted by it (s 4.55(8) EPA Act) and requires that, as a jurisdictional prerequisite to the modification of a development consent, that a consent authority may modify the consent if: "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)". 1. The Respondent provides a summary of the legal principles that apply to the test of substantially the same development in s 4.55(2) of the EPA Act at par 32 of their written submissions as follows: "a. The reference point for the test of substantially the same development is "the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)" (section 4.55(2) Scrap Reality at [16]); b. the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); c. the term "substantially" means "essentially or materially having the same essence" (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); d. to assess whether a consent is modified will be substantially the same development requires a comparison of the before and after situations. differences of the process of implementation which have environmental implications or differences in outcomes. e. in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); f. In relation to being satisfied as to the precondition of substantially the same development, the Court in Moto Projects found: - The comparative task requires both a quantitative as well as a qualitative appreciation of the differences. - The comparative task needs to be undertaken in a context, including the circumstances in which the original development consent was granted. - The comparative task needs to assess the physical features that are changed, but also the environmental impacts of the changes. - While the comparative task involves a comparison of the whole of the developments that are being compared, this should not operate to diminish a feature of the development which is important, material or essential. In these circumstances, a change to an important, material or essential feature of a development is likely to mean that the modified development is not substantially the same as the original consent. (Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280)" 1. The Applicant refers to the decision of Commissioner Clay in Horseshoe Properties Pty Ltd v Tweed Shire Council [2021] NSWLEC 1507 ("Horseshoe Properties") where Commissioner Clay helpfully provides a comprehensive summary of the various older and more recent authorities on how the "substantially the same" test is to be approached from paragraphs 27 to 43. 2. Importantly, the principles listed by the Respondent, extracted and reproduced above, need to be considered with some caution in light of the more recent decision of Preston CJ in Arrange, which is instructive, and a reminder that the only "test" to be applied is that in the legislature and it is important not to substitute for the legislative test, one from case law. As his Honour observed at [18]: "The "test" the Commissioner was obliged to apply was not some dicta of Bignold J in Moto Projects, but rather the statutory provision of s 4.55(2)(a) of the EPA Act. Judicial decisions interpreting similar or identical legislative provisions may guide, but cannot control, the meaning of the legislative provision to be construed and applied by the court. Judicial decisions are not substitutes for the text of the legislation, although by reason of the doctrine of precedent and the hierarchical nature of the court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31]." 1. As identified by Clay C in Horseshoe at par 38 and 39, his Honour, made clear at [26] - [28]: "26. The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. ….. 27. This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry. 28. That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development. For example, comparison could be made of the consequences, such as the environmental impacts, of carrying out the modified development compared to the originally approved development: see Moto Projects at [62] and Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351; [2003] NSWLEC 253 at [17]." (Emphasis added) 1. His Honour had observed that if the comparative task was undertaken by the identification of the essential elements then: "24. .. the essential elements are not to be identified "from the circumstances of the grant of the development consent"; they are to be derived from the originally approved and the modified developments. It is the features or components of the originally approved and modified developments that are to be compared in order to assess whether the modified development is substantially the same as the originally approved development." 1. At [40] Preston CJ cautioned: "40. .. the Commissioner was not legally bound, by s 4.55(2)(a) of the EPA Act, to consider the circumstances in which the development consent was originally granted or the material or essential elements of the original development consent: neither are mandatory relevant matters, such that a failure to consider them is an error of law: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40." 1. The Appellant in Arrage also argued that the Commissioner erred by failing to consider the provisions of the relevant environmental planning instrument. Preston CJ said at [42] – [44]: "42. It is true that s 4.55(3) requires a consent authority to take into consideration such of the matters in s 4.15(1) of the EPA Act as are of relevance to the development the subject of the modification application and that one of those matters is the applicable environmental planning instruments, which would include in this case MLEP. But that consideration occurs "in determining an application for modification of a consent" under s 4.55. This determination cannot occur unless and until the preconditions in s 4.55(2) have been satisfied, one of which is in s 4.55(2)(a) that the consent authority has formed the positive opinion of satisfaction 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)". The consent authority is therefore not bound by s 4.55(3) to consider the provisions of applicable environmental planning instruments at the stage of determining whether the precondition in s 4.55(2)(a) is met. 43. This is not to say that it would not be permissible for a consent authority to consider the provisions of applicable environmental planning instruments in determining whether the precondition in s 4.55(2)(a) is met, only that the consent authority is not bound in law to do so. There is a difference between a relevant matter that a repository of power is bound to consider and a permissible matter that the repository of power is entitled to consider. 44. In these circumstances, the Commissioner would not err on a question of law by not expressly considering the provisions of MLEP in determining whether he was satisfied of the precondition in s 4.55(2)(a) of the EPA Act." (Emphasis added) 1. I have also considered the principles as summarised by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 ("Westlime") in which at [173] her Honour said: "[173] The applicable legal principles governing the exercise of the power contained in s 96(2)(a) [now s 4.55(2)] of the EPAA may be stated as follows: (1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); (2) the modification power is beneficial and facultative (Michael Standley at 440); (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); (7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52])." 1. I will come back to principle 6 in Westlime in response to the Applicant's submission that others have reached a conclusion as to the "substantially the same test" in the previous four modifications to the 2017 Consent. Assessment of whether the Proposed Modification is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified. 1. Having set out the legal principles above, I now undertake the assessment of whether the Proposed Modification is substantially the same as the development for which consent was originally granted and before that consent as originally granted was modified. 2. Since the 2017 Consent was granted, the development (as approved) has been previously modified as follows: 1. deleted the second level basement; 2. reduced car spaces from 12 to 8; 3. increased the number of boarding house rooms from 38 to 44; 4. removed a shop top housing unit; and 5. increased Gross Floor Area from approximately 1449m² to 1464m². 1. In addition to these changes resulting from previous modifications, the Proposed Development, the subject of these proceedings now proposes to make the following further modifications to the 2017 Consent: 1. remove a communal living room that had solar access and the Respondent submits was an essential element of the 2017 Consent; 2. add an additional boarding house room, and the Respondent submits this additional boarding house room will exacerbate the non-compliances with parking requirements; and 3. locate part of the boarding house, namely the laundry, on the ground floor where no residential component was ever proposed and the Respondent submits will thereby change the essence of the development. 1. The Respondent has prepared a table of modifications, Exhibit 5 and a reduced version of that table comparing only the plans the subject of the 2017 Consent and the Proposed Modification is reproduced below from their written submissions at page 10: 1. The town planning experts Mr Hugo and Mr Nino provide evidence as to their opinions as to this contention in the JER Planning and Mr Nino was also cross examined during the proceedings. The expert town planners do not agree as to whether the Proposed Modification is substantially the same as the development for which consent was originally granted. 2. Mr Hugo acknowledges that this is a jurisdictional test and it is most appropriate for the lawyers to address this issue. Nevertheless, Mr Hugo gives the following opinions in the JER Planning: 1. "The originally approved development included shop top housing and had a significantly smaller boarding house component than the development as modified. The originally approved development contained two communal living rooms on level 3, one with access to the private open space and another located on the northern side that had solar access." (at par 10); 2. "The common rooms of a boarding house of this size is an essential element and consent would not have been granted without it as it is critical to the amenity of the residents and reflected by clauses 29(2)(c) and 30(1)(a of SEPP ARH." (at par 11); 3. "The common room with solar access is an essential element of the original approval and its removal changes the way that the assessment of the development as originally approved would have been carried out." (at par 12); 4. "The approval of the proposed modification by the court would be cited in other cases for the principal that a boarding house can obtain approval then remove one or more of the common rooms my modification and replace them with additional boarding rooms. This would undermine public confidence in the planning system and consent authority's capacity to negotiate in good faith with applicants for amenity for boarding house residents. Consent in this circumstance would allow a loophole that would allow applicant to avoid complying with the requirements for boarding houses." (at par 13). 1. Mr Nino gives the following opinion at par 14 of the JER Planning: "The proposed modification results in substantially the same development as was originally approved. The modifications sought by the subject application are (as outlined in Contention 2, particular d): i. Consolidation and increase in size to the communal living room on level 3, including amendments to the common outdoor area by adding a BBQ and increasing its size. ii. Replace the second communal living room with a boarding house room. iii. Relocation of the communal laundry to the ground floor." 1. Mr Nino, in cross examination agreed with the following qualitative and quantitative analysis put to him (Respondent written subs, par 39): "a. Quantitatively, the comparison reflected: * an increase in boarding room numbers from 38 to 45 – an approximate increase of 20%; * reduction in number of car spaces from 12 to 8 – a reduction by 33% * Effective deletion of a usable floor of the development (second level basement); * Removal of an approved use, being shop top housing; and * deletion of a standalone second common room with compliant and sufficient solar access. b. Qualitatively, the comparison reflected: * An increase in number of residents and in the intensity of the development; * reconfigurations of key floors of the development; The possibility of reduced solar access to the common room if adjacent land was redeveloped." 1. The Respondent concludes, in written submissions, as follows: "41. The alterations to the development since the 2017 Consent demonstrates a clear trend increasing the intensity of use on the site and increasing the yield. There has been a significant increase in boarding room numbers, but a reduction of shared infrastructure and facilities (such as courtyards, parking and common rooms). This is to the detriment of resident amenity. 42. The relevant comparison of before and after called for by Moto Projects was essentially agreed by Mr Nino and referred to above at paragraph 39. 43. Internally, the plans before the Court bear little resemblance to what was approved. Many key floors are unrecognisable compared to the 2017 plans. Further to that, the originally approved generously sized separate common room with solar access was an essential element in the grant of the 2017 Consent as evidenced by its prominent place in the plans and in the planning controls. The removal of a common room with guaranteed solar access is from a qualitative perspective critical in rendering the development outside the scope of substantially the same development. 44. For those reasons, the Court would find that the proposed development is not "substantially the same development" as the development for which consent was originally granted." 1. The Applicant submits at par 19 that Mr Hugo's evidence is limited to the assessment of the reasons given by the consent authority for the original consent (cl 4.55(3) of EPA Act), as distinct from the assessment of substantially the same and states as follows: "His evidence, however, is, is both wrong in fact and in law. The determination of Moore J: a. does not suggest the common room in any particular size or number was an essential element of consent; b. does not suggest the common room were critical to the amenity of the residents; c. does not suggest the solar access to the common room was an essential element of the original approval; and d. does not provide any indication of how the original development would have been assessed if one communal living space was provided." 1. The Applicant concludes at par 30 of written submissions that "The amenity, use, and features of the modified development retain the material and essential elements of the development originally approved. There has been no radical transformation and the Court would be satisfied the modified development is substantially the same as that originally approved." 1. I have carefully read and considered the judgment of Justice Moore and have considered the evidence before the Court and the submissions of the parties. My Findings and conclusion: 1. I reach the conclusion that the Proposed Modification is not substantially the same as the development for which consent was originally granted. I have undertaken a comparative task which involved an appreciation, qualitative, as well as quantitative, of the developments being compared, including the circumstances in which the 2017 development consent was granted. 2. I have also undertaken a visual or pictorial comparison of the plans of the 2017 Consent in Exhibit 1 with the Proposed Modification (Ex C) as both the Respondent and the Applicant invited the Court to do (Transcript pages 9 to 11 and page 50). 3. Focusing on the communal living spaces, the Applicant refers to the current size and amenity of the north facing common room however the test, acknowledged by both parties, is a comparison between the 2017 Consent and the Proposed Modification. I reproduce the two relevant level 3 drawings being DA103 Rev G (Ex 1) and DA103 Rev 3 (Ex C): DA103 Rev G (2017 Consent) (Ex 1) DA103 Rev 3 (Proposed Modification) (Ex C) 1. I am unable to be satisfied that they are substantially the same both in a quantitative sense, where the 2017 Consent has 2 separate communal living spaces as opposed to the Proposed Modification which proposes a single, albeit larger and reconfigured, communal living space. From a qualitative comparison, I conclude that the evidence supports a finding that the Site will lose a north facing communal living space and although there may be some other amenity improvements or benefit, it is a simple proposition that the Proposed Modification would no longer offer or provide the same north facing solar access and amenity in a communal living space as per the 2017 Consent. 2. Whether or not the north facing common room with solar access is a material and essential feature of the 2017 consent may not be ultimately determinative of the "substantially the same test". However, I agree with the Respondent that Moore J would not have considered or expressly mentioned the common room(s) because it was not an issue in dispute between the parties and the Court had the benefit then, as it does now, of the Class 1 Application which includes the development assessment report for the original development application. At folio 697 of Exhibit 1, at the very bottom row of the table, there is an assessment of the development application compliance with the provisions of SEPP ARH which notes the communal living room is located in a position where it would receive adequate solar access and that it complies with the must not refuse provision of cl 29(2)(c) of the SEPP ARH. I accept the Respondent's opening submissions that in that context, "it's no surprise that this issue was not further ventilated by the Court when planning to determine the development application." (Transcript page 8 at par 45) The issues in dispute before Moore J basically related to character, given that the development was to be one of the first in the row to be developed. 3. The Applicant's written submissions at par 10 relies on the authorities of Segal & Anor v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 and Gales-Kingscliff Pty Ltd v Tweed Shire Council (No. 2) [2007] NSWLEC 817 for the legal principle that the Court is to consider the issues in contention. This is wholly consistent with the Respondent's submission above and is inconsistent with the Applicant's reliance on the decision of Moore J and the submission in closing that "Moore J did not suggest that the common room in any particular size or number was an essential element of his approval, he didn't suggest that the common room was critical to the amenity of the residents, he didn't suggest the solar access to the common room to the north was essential to his approval." (Transcript page 49 at par 18) 4. We may not know categorically whether the communal living space(s) was an essential or critical feature for Moore J in the 2017 Consent however, the Court does know that a 'do not refuse' provision of the SEPP ARH, namely cl 29 relating to the provision of a communal living space with solar access in a boarding house, was complied with and as such I conclude that the north facing common room, proposed to be deleted and replaced with a boarding room, is a material element of the 2017 Consent. 5. I now move on to consider whether the introduction to the ground floor of a residential component of the boarding house, namely the communal laundry, modifies the 2017 Consent to the extent that it renders the development no longer substantially the same. Put another way, is the lack of residential component on the ground floor (the communal laundry of a boarding house) a material and essential feature of the 2017 consent and does this modification render the development not substantially the same? My answer is that the proposed relocation of the laundry onto the ground floor results in the development not being substantially the same as the 2017 Consent. 6. The use of land is a relevant consideration in the comparison exercise and the introduction of a residential use (the laundry) is a new introduction of use to the currently exclusive commercial ground floor. I note from the SOFACR particular (f) that "there were always supportive elements of the boarding house on the ground floor, including the residential bin store, which was removed in MOD 1 and reinstated in MOD 2" and that the Applicant's case is that the inclusion of the 7m2 laundry is a minor extension of "this consistent arrangement." 7. I note that Mr Hugo, in the JER Planning at par 67 refers to the objectives of B4 Mixed Use zone in the Ashfield Local Environmental Plan 2013 and concludes as follows: "In my opinion the relocation of part of the boarding house to the ground floor is inconsistent with the zone objectives as it displaces space for commercial and employment purposes. It should be noted that the bike parking is for the purposes of the development as a whole and not exclusively for residential purposes." 1. I do not agree with the Applicant, that the inclusion of the laundry is a minor extension of existing residential bin store. Like the bike parking, bin storage is a common residential and commercial use whereas a common laundry is for the exclusive use of boarding house residents and is a clear introduction of a residential use to the ground floor area. I conclude that from both a quantitative and qualitative basis the proposed change is not substantially the same as the 2017 Consent. 2. Finally, I return to principle 6 in Westlime. The Applicant refers the Court to the previous opinions formed in relation to the "substantially the same" test for MOD 1, O'Neill C, and the following modifications at Ex 1 folios 853 (Mod 2), 915 (Mod 3) and 973 (Mod 4). While acknowledging it may not be the test the Applicant submits that: "it is worth noting that following the first modification application, which increased the number of boarding rooms to 43, deleted the residential apartment and basement level partly in favour of a car stacker at basement 2, Council didn't raise any concerns as to whether or not the development was substantially the same and so much was found by Commissioner O'Neill at par 5 of that judgment where she formed that requisite opinion. This is also consistent with the respondent's assessment of the development through its various modification application, which were all by agreement, aside from the one that was determined by Commissioner O'Neill, which was still by agreement, it was a s 34 agreement […] so the only real difference appears to be the deletion of the small common room to the north." (Transcript page 48 at par 32 to 46) 1. It is clear that I am not bound by the previous opinions formed by the Respondent or Commissioner O'Neill in relation to previous modifications. To rely on these previous opinions would not be a proper exercise of forming my own opinion in accordance with the provisions of s 4.55(2)(a) of the EPA Act. As stated in Westlime, the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions. 2. The Applicant has not discharged the burden of showing that the modified development is substantially the same as the 2017 Consent. 3. I am therefore not satisfied that the development to which the consent as modified relates is substantially, essentially or materially the same development or having the same essence as the development for which consent was originally granted by Moore J in 193 Liverpool Road Pty Ltd v Inner West Council [2017] NSWLEC 13. 4. I conclude that the Proposed Modification should not be approved. 5. Having reached this conclusion, namely that the jurisdictional precondition in s 4.55(2) of the EPA Act has not been satisfied, it is not necessary to address the merit contentions which fall within the consideration of the relevant matters in s 4.15(1) of the EPA as required by s 4.55(3) (Arrage [42]-[45]). Orders 1. The Court orders: 1. The appeal is dismissed. 2. All exhibits are retained. ………………………. E Espinosa Commissioner of the Court ********** Amendments 13 April 2022 - Corrected typographical error in 'Representation' details. 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: 13 April 2022