Xu v Hurstville City Council [2010] NSWLEC 1359

Land and Environment Court of New South Wales

CITATION : Xu v Hurstville City Council [2010] NSWLEC 1359

APPLICANT Ying Xu PARTIES : RESPONDENT Hurstville City Council

FILE NUMBER(S) : 10671 of 2010

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT MODIFICATION :- alterations and additions to an existing house extent of demolition and whether substantially the same development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

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

DATES OF HEARING: 3 December 2010

EX TEMPORE JUDGMENT DATE : 3 December 2010

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

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Tuor C

3 December 2010

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

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