Land and Environment Court of New South Wales CITATION : Eaglecorp Property Consultants Pty Limited v Wollongong City Council [2008] NSWLEC 1377 APPLICANT Eaglecorp Property Consultants Pty Limited PARTIES : RESPONDENT Wollongong City Council FILE NUMBER(S) : 11334 of 2007 CORAM: Murrell C KEY ISSUES: Section 96 Application - Section 96 Modification :- mixed use development of a 7-storey building, basement parking, retail and commercial and residential use, FSR LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Wollongong City Centre Development Control Plan 2007 Thomas v Pittwater Council, [2003] NSWLEC 19 CASES CITED: Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Moto Projects (No 2) Pty Ltd v North Sydney C [1999] NSWLEC 280 North Sydney v Michael Stanley (1998) 43 NSWLR 468 DATES OF HEARING: 4/03/2008, 5/05/2008 and 29/08/2008 EX TEMPORE JUDGMENT DATE : 29 August 2008 APPLICANT Ms M-L Taylor, solicitor of Bartier Perry Pty Ltd LEGAL REPRESENTATIVES: RESPONDENT Mr M. Mantai, solicitor of Kells the Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 29 August 2008 11334 of 2007 Eaglecorp Property Consultants Pty Limited v Wollongong City Council This determination was given extemporaneously and it has been edited prior to publication JUDGMENT 1 This matter has come before me today as a s 96 modification application submitted to the Court under s 96(8) of the Environmental Planning and Assessment Act. 2 A development application was originally approved by the Court for "a mixed used development comprising the construction of a 7-storey building over three levels of basement parking containing 29 spaces, ground floor retail and commercial, first floor commercial, four floors of hotel (incorporating 30 hotel rooms) and the top floor residential containing two bedroom apartments." 3 The s 96 modification is to change level 2 of the building that previously contained the dining and other facilities for hotel patrons and for this area to be changed to allow for two serviced apartments within the development. The other modifications sought in the application are to the internal layout and for the balconies to be incorporated into the hotel rooms providing for increased floor area for those hotel rooms. The number of hotel rooms, however, remains at the same; that this 30. These balconies are to the rear and have a south-facing aspect. Council raises no issue with respect to the urban design of the proposal by the enclosure of the balconies. 4 There was an issue raised when the plan was submitted concerning the need for light wells, the applicant has undertaken to provide light wells and council is satisfied this issue is resolved. 5 When I first commenced these proceedings this morning the council raised, as a threshold question, the issue of whether the development is substantially the same development. However through the course of the morning, which is not an usual occurrence in this Court, with a Plan of Management for the hotel use and the two serviced apartments attached to the hotel the council is now satisfied that it is substantially the same development. 6 As such the threshold test is not an issue although as the consent authority, I must be satisfied that it is substantially the same development. As such I refer to the judgment of Lloyd J Thomas v Pittwater Council, [2003] NSWLEC 19 wherein his Honour provides a convenient summary of the case law in determining whether developments are substantially the same development. This judgment of Lloyd J refers to the significant cases on this question. In particular Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, where the question of materially the same and substantially the same development was considered by Stein J as follows: "In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situation. In approaching the exercise one should not fall into the trap of saying the development was for a certain use and as amended will be for precisely the same use and accordingly is substantially the same development". 7 The judgment of Moto Projects (No 2) Pty Ltd v North Sydney C [1999] NSWLEC 280 states: "The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified but the comparison is qualitative as well as quantitative in the proper context including the circumstances in which the development consent was granted". 8 In North Sydney v Michael Stanley (1998) 43 NSWLR 468: "Modify has been held to mean to alter without radical transformation and substantially the same to mean essentially or materially the same". 9 I am satisfied that the proposed development with the introduction of two serviced apartments to be managed in conjunction with the hotel satisfies the requirement of substantially the same development. The other changes proposed in my opinion are minor. 10 At the end of the day s 96 is facultative in that s 96 applications facilitate amendments to approved developments. In assessing whether this development should be modified I have the benefit of the judgment of the original approval and in terms of substantially the same development the test is the development as approved. As I said I am satisfied that it complies with substantially the same development. 11 The applicant submitted the development application under s 96 as a minor amendment, however even if I consider it to be 'other modifications' under s 96(2) I am satisfied that the proposal has been advertised in accordance with the provisions for modification applications. I am also satisfied that the objector that lodged an objection with the council has been advised of today's proceedings and I have had regard to his letter of objection. 12 Having passed the threshold test of substantially the same development I can now proceed to a merits assessment of the modification application. In this regard I am guided by the provisions of the LEP. The LEP for Wollongong 2007 has controls for floor space ratio and the objectives of the plan for the controls for floor space ratio are as follows: (a) to ensure a degree of equity in relation to development potential for sites of different sizes and for sites located in different parts of the Wollongong City Centre; (b) to ensure that proposals for new buildings are assessed with due regard to the design excellence and built form provisions of this plan; (c) to provide sufficient floor space for high quality development for the foreseeable future; (d) to regulate density of development and generation of vehicular and pedestrian traffic. 13 The floor space ratio provisions are provided in the LEP. The LEP has definition of gross floor area in the plan. I note that it says any area for common vertical circulation is to be excluded from the calculation of FSR. 14 In these proceedings it is agreed between the parties that a SEPP 1 objection is not necessary even if I consider that the FSR provided for in the LEP is exceeded. 15 As such I can proceed to the merits of this application. In terms of the calculation of FSR the original approved development was some 3.365:1 and the approved development complied based on the configuration of the various uses. The proposed modification and configuration of uses allows a floor space ratio up to 3.275:1. The proposal in council's assessment calculates to some 170 square metres in excess of what the reconfigured uses in the building would allow on the subject site. 16 The objectives of the floor space ratio control are clearly to regulate bulk and density of development and generation of vehicular and pedestrian traffic. In my assessment of this application the impact of the proposed development must be considered in terms of the number of car parking spaces that are generated by the FSR. It is also important to understand that this is a relatively new LEP and council is desirous of its controls being consistently applied to provide for a degree of equity for the development of sites. 17 The Court is assisted by the experts Ms Rachel Harrison, council's town planner, and Mr Mitchell Lee, traffic engineer for the council, and Ms Treglown, a consultant planner for the applicant. 18 Ms Treglown, for the applicant, has excluded certain areas from the calculation and in her assessment the proposal complies with the 3.275 to 1. At the end of the day it is a rather technical point, however I am not persuaded that these areas identified in the applicant's plans should be excluded and therefore, I accept the council's evidence that the FSR is in excess of the control of 3.275:1. However, as agreed between the parties, a SEPP 1 objection is not necessary. 19 For my assessment I also have the benefit of council's Wollongong City Centre Development Control Plan 2007 which sets out maximum requirements for car parking for residential apartment buildings. This requires one space per one bedroom dwelling and 1.2 spaces for every two bedroom dwellings. In the proposed modification application development in the parking layout there is a space provided for each of the units, that is one each for the service apartments, and one each for the residential apartments plus one visitor parking space. 20 In my assessment it is noted that parking is at premium in this location and during the course of this morning's proceedings the applicant has agreed to provide for two additional car parking spaces, albeit in a stacked configuration, which has the effect of the boardroom attached to the hotel having to be deleted and the adjoining storage area reconfigured. This has the effect or reducing the exceedence of floor space to some 115 square metres. 21 The gymnasium provided in the building is some 85 square metres which would appear to be a rather large facility for a 30 hotel room facility, nonetheless that is the preference of the applicant to maintain such a facility and delete the board/conference room. In terms of parking demand or parking generated by the proposed development it is necessary for the gym to be only utilized by the hotel and residents to ensure no additional parking demand is generated by the gym. It must be quite clear in the plan of management that the gym is for the use of the hotel guests and the residential component of the development and not for any other persons. 22 The applicant has also agreed that the hotel reception area on the corner at the ground floor be designated only as hotel reception as opposed to reception/commercial and this will also give effect to ensuring no increased demand for car parking. 23 In terms of the merits assessment and s 79C as of relevance to this modification I have taken into consideration the provisions of council's controls. The plan has now been amended to provide a total of 33 spaces for the development (originally approved there were some 29 spaces provided with the reconfiguration discussed above this can be increased to 33). 24 I am satisfied that the introduction of two serviced apartments in the building and the additional parking now proposed together with the requirement to provide a plan of management leads me to conclude that there are no issues to warrant refusal of the modification application before me. 25 The Court is most conscious not to condone development by creep in assessing modifications to development consents. As such it is most important that this approval is on the basis of the management of the building being for the hotel and serviced apartments together and for the use of the gym being for the hotel and residents only. 26 The site is located in close proximity to the Wollongong Hospital and is on the edge of the city centre and clearly it has been designated as a site for redevelopment in the Council's recent LEP. There is no issue in terms of the urban design that the proposed modifications would have any implications or adverse impacts. 27 Therefore, I am satisfied that the consent should be granted to an amended set of plans to reflect changes agreed to today. The applicant has indicated that such plans could be prepared within seven days. comment on same and provide an amended set of conditions to the Court. 28 As such, on the receipt of the amended plans in accordance with the above and agreed amended conditions I will then issue orders in chambers as follows: (1) The appeal in respect of the property known as 385A Crown Street, Wollongong, is upheld; (2) The s 96(8) application for modifications to the Court's previous consent is approved subject to the conditions in Annexure A; (3) The exhibits are returned with the exception of 2, 6, B, C and D. ___________________ 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.