Land and Environment Court of New South Wales CITATION : Gann & Anor v Sutherland Shire Council [2008] NSWLEC 157 APPLICANTS: Peter James Gann & Tracy Dawn Keiser Gann PARTIES : RESPONDENT: Sutherland Shire Council FILE NUMBER(S) : 10763 of 2007 CORAM: Lloyd J KEY ISSUES: Question of Law :- development application for construction of a new dwelling - modification of development consent - non-compliance with three provisions of the local environmental plan as proposed to be modified - power to modify consent - no legal impediment in such circumstances Environmental Planning and Assessment Act 1979 s 76A(1), s 79C and s 96 LEGISLATION CITED: State Environmental Planning Policy No. 1 - Development Standards cl 6 Uniform Civil Procedure Rules 2005 r 28.2 Sutherland Shire Local Environmental Plan 2006 cl 33(4), cl 35(5) and cl 36(3) Lido Real Estate Pty Ltd v Woollahra Municipal Council (1997) 98 LGERA CASES CITED: Mirvac Projects Pty Ltd v Ku Ring Gai Council & Anor [2007] NSWLEC 540 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 668; 97 LGERA 433 DATES OF HEARING: 25 March 2008 DATE OF JUDGMENT: 24 April 2008 APPLICANTS: T F Robertson SC and J E Lazarus (barrister) SOLICITORS: Whites Lawyers LEGAL REPRESENTATIVES: RESPONDENT: Dr S M Berveling (barrister) SOLICITORS: Janelle Amy Sutherland Council JUDGMENT: - 10 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Lloyd J Thursday, 24 April 2008 LEC No. 10763 of 2007 GANN & ANOR v SUTHERLAND SHIRE COUNCIL [2008] NSWLEC 157 JUDGMENT 1 HIS HONOUR: This is the separate determination of a question of law which is raised in an appeal in Class 1 of the Court's jurisdiction, as permitted by r 28.2 of the Uniform Civil Procedure Rules 2005. The question is as follows: Does the Court as consent authority have the power to modify the consent to Development Application No. 04/0950 granted by the respondent on or about 17 February 2005, where such modification results in non-compliance with cll 33(4), 35(5) and 36(3) of Sutherland Shire Local Environmental Plan 2006? 2 The relevant facts may be briefly described. On 17 February 2005, Sutherland Shire Council granted a deferred commencement consent for the demolition of an existing dwelling and associated facilities and the construction of a new dwelling and associated facilities. On 22 July 2005, the council modified the consent. On 29 November 2006, Sutherland Shire Local Environmental Plan 2006 ("the LEP") commenced. On 13 April 2007, the council received the present application for modification, which it refused. The applicants' present appeal is against the council's refusal to modify the consent. 3 The development as now proposed to be modified will infringe three provisions of the LEP – cl 33(4) relating to maximum building height, cl 35(5) relating to the maximum gross floor area and cl 36(3) relating to the minimum landscaped area of the site. No objection to these development standards has been made under State Environmental Planning Policy No. 1 – Development Standards ("SEPP No. 1"). The council's submissions 4 Dr S M Berveling, appearing for the council, relies upon the following submissions, as I understand them. (a) The proposal will contravene s 76A(1) of the Environmental Planning and Assessment Act 1979 , which states: 1) If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. In other words, the proposal would result in development which is carried out not in accordance with the second limb of sub-s (1)(b); that is, not in accordance with the instrument. (b) The power to modify a consent under s 96 of the Act does not provide a power to overcome the second limb of s 76A(1)(b), namely to carry out development in accordance with the LEP. (c) The relevant clauses of the LEP contain development standards which apply to the land and continue to apply unless a development consent is granted on the basis that compliance with these standards is unreasonable or unnecessary in the circumstances of the case. (d) The present case is distinguishable from the decision of the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 668; 97 LGERA 433. The decision in that case is limited in scope to the three examples given by Mason P at 444. (e) The present case is also distinguishable from Michael Standley because the Court of Appeal in that case did not examine the predecessor to s 76A(1) (then s 76(2)), namely, the requirement for development to be carried out in accordance with the LEP. (f) The present case is also distinguishable from Lido Real Estate Pty Ltd v Woollahra Municipal Council (1997) 98 LGERA, because in that case an objection had been made under SEPP No. 1 with the original development application and had been upheld; and the development standard sought to be breached by the proposed modification was the same standard which was the subject of the objection. (g) Neither in Lido nor in Standley had there been any consideration of the need for an objection under SEPP No. 1 (and development application). In the present case the prerequisites exist for the application of cl 6 of SEPP No. 1 and absent a successful objection the development standards prevail. (h) To not require an objection under SEPP No. 1 would enable a development standard to be circumvented by lodging a development application which does not breach any standard and thereafter seeking to modify it with a consequence of a breach; and it would be illogical and against public interest to allow a development consent to be modified whilst allowing a breach of the Act. (i) Support for these submissions is found in the judgment of Talbot J in Mirvac Projects Pty Ltd v Ku Ring Gai Council & Anor [2007] NSWLEC 540 at [50]-[52]. The relevant legislation 5 I have set out, in par [4(a)] above, s 76A(1) of the Act, upon which the council relies. 6 The key provision is s 96 itself, which is relevantly as follows: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (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 79C (1) as are of relevance to the development the subject of the application. (4) The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. (6) Appeals An applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days after the application is made may appeal to the Court and the Court may determine the appeal. 7 Finally, cl 6 of the SEPP No. 1 states: 6 Making of applications Where development could, but for any development standard, be carried out under the Act (either with or without the necessity for consent under the Act being obtained therefor) the person intending to carry out that development may make a development application in respect of that development, supported by a written objection that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case, and specifying the grounds of that objection. Conclusion 8 In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, 97 LGERA 433, the Court of Appeal considered the relationship between the then s 76 and the then s 102 of the Act. Section 76 was relevantly the same as the present s 76A, and s 102 was relevantly the same as the present s 96. The Court of Appeal held as follows (at 481): Section 102 [now s 96] is a free-standing provision. A modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application. And s 102(3 A ) [now s 96(3)] controls the way in which the consent authority takes into account the development standards found in any environmental planning instrument. 9 The fact that s 96 is a free-standing provision means that the restriction under s 76A which requires development to be carried out in accordance with the development consent and an environmental planning instrument, does not apply to an application under that section. This conclusion is reinforced by s 96(4), which states that the modification of a development consent in accordance with this section is taken not to be the granting of development consent, but a reference to a development consent includes a reference to the development consent as so modified. This provides a complete answer to the first three submissions advanced by Dr Berveling. Section 96(3) requires the consent authority to take the provisions of any relevant environmental planning instrument into consideration. 10 Dr Berveling next submits that the present case is distinguishable from Michael Standley. He argues that the decision in that case is limited in scope to the three examples given by Mason P at 444. Those three examples are as follows: ( 1) A development may contravene a development standard at the outset. The development application is accompanied by an objection under cl 6 of State Environmental Planning Policy No. 1 . The original application is consented to, pursuant to cl 7. There is a later application for modification pursuant to s 102. (2) A development may comply with all development standards at its inception. However those standards are later amended in a way that would preclude an identical original development application. Subsequently there is a s 102 application. (3) A development may be in category (2) except that the development standards are amended after an initial s 102 modification but prior to a subsequent application under that section. 11 I am unable to agree with the submission. Before mentioning the three examples, Mason P said: "I observe that the contexts in which the issue may arise may vary. Take the following examples…". His Honour was clearly not limiting himself to the three examples. They were three examples - there may be others. 12 In any event, in the present case the circumstances seem to fall squarely within the second example given by Mason P. The provisions of the LEP, which the development infringes, came into effect on the commencement of the LEP on 29 November 2006, which was after the grant of the development consent on 17 February 2005. 13 Neither do I accept the submission that the present case is distinguishable because the Court of Appeal did not examine the predecessor to s 76A(1) - then s 76(2) - namely, the requirement for development to be carried out in accordance with the LEP. This was expressly considered in Michael Standley in the passage quoted in par [8] above. Moreover, the submission is inconsistent with the concept of s 96 being a free-standing provision; that is, one that is not subject to s 76A(1). 14 Although the present case may be distinguished on its facts from Lido Estate Pty Ltd v Woollahra Municipal Council, that fact does not alter the position. The Court of Appeal not only confirmed that an application for modification could be approved for a development in breach of an applicable development standard, it also held that an objection under SEPP No. 1 was not available as a means of achieving modification in such circumstances. Clause 6 of SEPP No.1, set out in par [6] above, only applies where a development application is made, and as Mason P emphasised in Michael Standley (at 480): "modifications of a development consent in accordance with the section shall not be construed as the granting of development consent under the Division". 15 Dr Berveling submits that to not require an objection under SEPP No. 1 would enable a development standard to be circumvented in the circumstances of the present case, which would be illogical and against the public interest. I am unable to agree. This does not mean, that development standards count for nothing. Section 96(3) still requires the consent authority to take into consideration the matters referred to in s 79C, which in turn include the provision of any environmental planning instrument. That is, any development standard in an environmental planning instrument must be taken into consideration by the consent authority, but the absolute prohibition against the carrying out of development otherwise than in accordance with the instrument in s 76A(1) does not apply. 16 Dr Berveling submits that support for his contentions is derived in the judgment of Talbot J in Mirvac Projects Pty Ltd v Ku-ring-gai Council [2007] NSWLEC 540. 17 In that case a development standard (cl 25I(2) of the relevant environmental planning instrument) was in place when a development consent was granted, with which the development complied. An application for modification under s 96 was then made which infringed the standard. Talbot J noted, at par [45], that Mason P in Michael Standley dealt with three examples and said that none of the examples apply in the circumstances. His Honour continued at [50]-[52]: [50] The decision in Michael Standley does not facilitate ignoring an ongoing provision such as clause 25I(2) that controls a specification for the state of the site at any given time. It has not been dispensed with and accordingly has continuing effect. The only means to engage SEPP 1 is by the lodgement of a development application. There is no such application on foot. [51] The problem for the Court therefore is that it is being asked to approve a modified development in a form that cannot be maintained whilever clause 25I(2) operates against it. As a matter of policy the Court should not embrace such a position by granting an approval to a form of development that can only be carried on in breach of the Act (see s 76A(1) and s 125). [52] The last mentioned conclusion means that the court must refuse the application in so far as it inevitably leads to the consequence of there being a breach of cl 25I(2). 18 It seems to me, however, that in referring to ss 76A(1) and 125 in par [51] His Honour ignored the fact that s 96 is a stand-alone provision which is not subject to s 76A. Moreover, His Honour's concern about an infringement of the development standard ignored s 96(3) and the need for the consent authority to take into consideration any relevant matters under s 79C. I am thus not persuaded that Mirvac Projects support Dr Berveling's submissions. Moreover, Mirvac Projects is distinguishable because the relevant development standards in the present case were introduced after the original development consent was granted. 19 It follows that there is no legal impediment to the grant of development consent in the present case despite the infringement of the three development standards in the LEP governing maximum building height, maximum gross floor area and the minimum landscaped area. These development standards will be part of the general considerations under s 79C of the Act. 20 The question raised for separate determination is answered "yes". The exhibits may be returned. I hereby certify that the preceding 20 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd. Associate Dated: 24 April 2008 ********** 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.