Land and Environment Court of New South Wales CITATION : The Turnbull Group Pty Ltd v Pittwater Council [2007] NSWLEC 445 APPLICANT The Turnbull Group Pty Ltd PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10320 of 2007 CORAM: Murrell C KEY ISSUES: Section 96 Application :- modification application, demolition and re-erection of studio at rear of site. Whether substanially the same development. Impacts on adjoining property and area. LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Moto Projects (No 2) Pty Limited v North Sydney Council ; CASES CITED: Vacik Pty Limited v Penrith City Council NSWLEC 24 ; Thomas v Pittwater Council (2003) NSWLEC 19; Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 DATES OF HEARING: 3/07/2007 DATE OF JUDGMENT: 10 July 2007 APPLICANT Mr A. Galasso, SC Instructed by Mr Hannaford LEGAL REPRESENTATIVES: RESPONDENT Mr M. Causer, solicitor of Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 10 July 2007 10320 of 2007 The Turnbull Group Pty Ltd v Pittwater Council JUDGMENT 1 This is a verbal judgment for a matter heard on site last week. This is a s 96(6) appeal under the Environmental Planning and Assessment Act against Pittwater Council's refusal of a modification application for the property known as 278 Whale Beach Road, Whale Beach. 2 The s 96 modification application is in respect of a consent granted by the council in 1998 for alterations and additions to the property. This modification application is for the demolition and re-erection of the studio at the rear of the site. 3 The Court met on site and heard from the experts in the proceedings: Mr Ross Fleming gave evidence on behalf of the applicant and Ms Anna Williams, council's assessment officer, gave evidence for the council. The Court also heard from a number of resident objectors. 4 Mr & Mrs Jane and John Baylis of 51 Norma Road reside in the property to the rear of the subject site. They are of the opinion the proposed modification application is not in keeping with the area and that it would be a transformation of the previous fibro shed in terms of the new materials proposed that will change the nature and character of it, in that it had previously never or rarely been used whereas under the new construction it will change its use and character. They are also concerned about the impact of the proposed studio in terms of the views from their second bedroom area and also their dining and entertainment area. It could be seen on site that there are most magnificent and expansive views from their property to the north over Barrenjoey, to the east to the ocean, and to the south over Whale Beach. 5 In my assessment the proposed studio would have some impact, although rather limited, in terms of the view from the dinning area however, from the second bedroom at the lower level of their dwelling there would be increased impact, in particular because of the relative levels and the proximity of the shed to the rear boundary. 6 Mr Storm Jacklin represents the Palm Beach/Whale Beach Association and he is concerned about the proposed development representing a dual occupancy and that all plumbing should be removed. Also he is concerned about the deck and pathway erected for access to the studio that encroaches onto the reserve and that appropriate setbacks should be enforced. He is also concerned about there should be a contribution paid by the applicant for the regeneration of the reserve where previous access to remove the old materials was gained. 7 Mr John McCosker is the owner of the property to west at 276 Whale Beach Road and he questions whether the proposed modification would satisfy the threshold question as being substantially the same development. In his opinion it is somewhat bizarre to consider that the rebuilding of the studio could fall within the alterations and additions as approved by the council in 1998. He is also concerned that the covenant was not registered over the property. That is that the studio not be used for second occupation or dual occupancy occupation, and that the kitchen and bathroom had not been removed from the previous studio that was a requirement of the consent in 1998. And he considers if something is built it should be more appropriate and in keeping with the area and assessed through the proper planning process of a development application. 8 Mr Yahoo Serious of 49 Norma Road, the property to the rear and west but not directly behind, is concerned about view loss and expressed similar concerns to the Baylis' in terms of proximity of the studio to the rear boundary and the fact that this portion of the rear yards of the properties fronting Whale Beach Road formed a wildlife and flora corridor, and he described it as an amphitheatre in terms of the topography of the area. 9 The s 96 application before the Court is for the demolition and re-erection of a studio at the rear of the dwelling house set back some 4.9 to 6.4 metres from the rear boundary, that is the common northern boundary of the subject property with number 51 Norma Road. It is proposed that it be used for an office art studio. The dwelling house has a setback to the rear boundary of some 26 metres. 10 The background to the application is that in the 2005 storm event, the studio collapsed when it was in the process of being reclad, and that it was originally erected as a shed in about 1950. At this point I will preface my findings by saying that it is common ground between the parties that consent is required for the rebuilding of the studio. The applicant initially proceeded to rebuild without approval and there was an order to cease work, which was complied with. The existing stone foundations are to be utilised for the proposed studio. The modification application that was submitted to council to re-erect the studio includes changes to the fenestration compared to the original studio a lowering of the roof by approximately 170 millimetres, and the door to the studio relocated from the north to the east. Also proposed was a pergola that has subsequently been deleted, the studio is some 36 metres in size. Also the change in glazing, the western elevation now contains a large window and the other windows have also been changed and enlarged compared to the previous studio. 11 The threshold question is whether it is substantially the same development. The council contends that it is not substantially the same development. However in terms of a merit assessment Ms Anna Williams for the council indicated that subject to satisfactory landscaping and screening, and subject to a change to reverse the roof pitch to reduce the impact on the property behind at 51 Norma Road by increasing the view opportunities in particular from the second bedroom. Ms Williams is of the opinion the roof pitch should be changed to pitch in the opposite direction that would have the effect of lowering it by approximately 350 millimetres. 12 There is no dispute that s 96 applications can be retrospective, with the authority of the judgment of Talbot J in Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240. As could be seen on the site inspection, the studio has been partially erected with the new frame windows and partially clad with the new materials as shown in the plans the subject of these proceedings. 13 In my assessment I have considered the provisions under the Environmental Planning and Assessment Act of s 96 whether it be for a modification under s 96(1A)(b) involving minimal environmental impact, and it is not submitted by either party that the modification falls into this category, the consent authority must be satisfied that the development to which the consent as modified relates is substantially the same development as that as originally consented to. Or in terms of other modifications under 96 subs (2) a consent authority may on application being made, modify the consent if it is satisfied that 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. 14 As such I must have consideration to the original development application consent. A copy of the consent document of 1999 and plans for the alterations and additions to the dwelling house were provided to the Court. In the plans I see that the studio is shown on the site plan for the whole of the property. The alterations and additions to the dwelling house are coloured and relate to the lower portion of the site where there have been significant alterations and additions carried out to the original cottage. 15 In the development consent, the council's development consent refers to the development application N0526/98, and the consent is for alterations and additions. I note the consent states that: "the development is to be carried out in accordance with the plans prepared by Douglas Mackay, Architects and as amended in red or as modified by any condition of this consent". I also note that condition 29 of the council's consent requires "the bathroom and cooking facilities being removed from the building at the rear of the property nominated as studio on the approved plans, and a covenant being placed on the title of the land at the applicant's expense, the terms of which clearly denote that the structure is not to be used for separate residential purposes or it ever be modified so as to incorporate bathroom, toilet or cooking facilities." 16 In my consideration of whether the proosal is substantially the same development has been guided by a judgment in this Court of his Honour Lloyd J in Thomas v Pittwater Council (2003) NSWLEC 19, wherein his Honour refers to previous decisions of this Court that address the question of substantially the same development. It is noted in this case before his Honour that development consent for alterations and additions to an existing dwelling house was granted and several months later the whole of the main part of the house was demolished including the floor and internal walls originally proposed and approved to remain. In his conclusions Lloyd J refers to Vacik Pty Limited v Penrith City Council NSWLEC 24 February 1992 wherein Stein J said, "In assessing whether the consent as modified will be substantially the same development, one needs to compare the before the after situation. In approaching the exercise one should not fall into the trap of saying that the development was for a certain use and as amended will be for precisely the same use and accordingly is substantially the same." 17 His Honour Lloyd J also refers to Moto Projects (No 2) Pty Limited v North Sydney Council wherein it is stated "that the comparative task does not merely involve a comparison of a physical features or components of the development as currently approved and modified where the comparative exercise is undertaken in some type of sterile vacuum. Rather the comparison involves an appreciation qualitative as well as quantitative of the development being compared in their proper context, including the circumstances in which the development consent was granted." 18 Whilst the facts and circumstances may have been different in the matter before Lloyd J, nonetheless, the judgment provides guidance in addressing and considering the threshold question of whether the proposed studio rebuilding or re-erection is substantially the same development to which council granted consent in 1999 for alterations and additions to the cottage on the subject site. 19 I have the benefit of the experts views on the matter as well, and also I have the advantage of the scope of works that was outlined by the architects in a letter to the council wherein it was stated that the proposed alterations and additions include: (1) demolition of the existing bedrooms together with a portion of the living dining area to accommodate a double garage and new entrance… (2) conversion of the existing study to two bedrooms and the living dining area to a rumpus room… (3) demolition of the existing kitchen… (4) demolition of the existing roof and provision of a new living/dining area to the upper floor opening onto a terrace at the front with a new kitchen at the rear… (5) provision of a small study above the kitchen opening onto a rear deck… (6) demolition of existing front garden retaining wall, stairs, paving and new landscaping… (7) construction of a new driveway... 20 The compliance table in the council's report also identified that the rear setback of the development was some 26 metres to the primary dwelling house on the subject site. 21 The applicant contends that it is only replacing the existing studio and that it should be entitled to reinstate it as such. While it is noted that condition 29 required the removal of the kitchen and bathroom and a covenant that appears not to have been placed on the title of the land, this is not a matter for me in these proceedings. 22 It was agreed between the parties the rebuilding of the studio requires consent and is therefore this is not a question for me in these proceedings. The threshold question for me is whether the modification application is substantially the same development and of materially and essentially the same elements as the development consent. In terms of a qualitative analysis of the test as to whether the consent to which the modification application relates is substantially the same development for which consent was granted. I am not satisfied that the modification application if approved would be substantially the same as that consented to by the council in 1999. 23 In arriving at my decision I have had regard to the council's consent which I must direct my attention under s 96, and is refers to the development application ploans (to which I have the benefit of the original coloured plans) and also the conditions. 24 While the plans show the existing shed/studio on the site plan and the conditions refer to same requiring the removal of the bathroom and the kitchen and the imposition of a covenant, nonetheless, this does not provide a basis or an inference that could be extended and utilized to allow the proposed modification to demolish and re-erect the studio structure.. The condition to remove the plumbing and internal fittings cannot in my assessment infer or imply external works to the studio. In my assessment of the facts the compass of the original consent does not allow or extend to a rebuilding of the studio as proposed in the application before me. Therefore it fails the test of not being substantially the same development to which consent was originally granted in 1999 25 As I said I have not been influenced by the fact the applicant did not carry out the requirements of condition 29 or it would appear a covenant has not been placed over the title of the property to ensure that it is not used for dual occupancy. These matters are not relevant to my determination of the threshold question. The modification application fails on the fact that the essence of the consent as modified would not be substantially the same development as that to which consent was originally granted. 26 It is not necessary for me to undertake a merits assessment under s 79C given that the Court is without power to determine the application as it does not pass the threshold question of substantially the same development. However, I am also of the view that the application would fail on its merits because the design should be more respectful, in particular the pitch of the roof, and it should demonstrate designs details more appropriate and in keeping with the dwelling house and the character of the area. In my opinion there should be consideration given to the development when viewed from adjoining properties including the reserve and the impacts on same. . For example I agree with the council officer it would not appear to be onerous for the applicant to pitch the roof to reduce the impact on the views from the property to the rear. 27 The council had previously advised the applicant that the proper course of action is to submit a development application under s 97 and also an application for a building certificate for the works that have already been carried out. The assessment of these applications would be a matter for the future consent authority having regard to s79C. A holistic assessment would also have regard to materials, finishes and design. An assessment may also include whether it is appropriate for an 88E instrument to be placed over the title of the land prior to any use, whether that be an interim occupation certificate or an occupation certificate for the studio itself. 28 On the one hand the applicant says that it is only seeking to reinstate the studio, but at the same time it is seeking to erect a new verandah and increase the glazing area to the studio for improved amenity. A new studio on the old foundations provides the opportunity for a more skilful design if it is considered appropriate that a studio be erected at the rear of this dwelling within close proximity to the rear boundary 29 Even if I considered the application should be approved on its merits, it would be a bad precedent to ignore the threshold test of substantially the same development. For example, while not applicable to this case, if alterations and additions were approved to a heritage item in a development consent and subsequently the item was demolished and an applicant then sought re-erection by way of a s96 application this would circumvent the planning process. While s 96 is a facultative mechanism at the same time the consent authority must be satisfied that it is substantially the same development for which consent was originally granted. 30 In summary the applicant in my assessment has failed to discharge the onus of showing that the development as sought to be modified would be substantially the same for which the development consent was originally granted. 31 Accordingly the formal orders of the Court in this matter are: 1. The appeal in respect of the property known as 278 Whale Beach Road, Whale Beach, is dismissed. 2. The s 96 modification application is determined as not being substantially the same development and therefore consent is refused. 3. The exhibits are returned to the parties. ___________________ J S Murrell Commissioner of the Court ljr 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.