Land and Environment Court of New South Wales CITATION : Taylor v Mosman Municipal Council [2007] NSWLEC 86 APPLICANT Carolyn and Charles Taylor PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10048 of 2005 CORAM: Murrell C KEY ISSUES: Appeal :- Section 96 modification for retrtospective approval of removal of basement and ground floor slabs and walls and erection of new walls and slabs, consent originally for alterations and additions to an existing dwelling house, question whether substantially the same development under section 96 LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: Thomas v Pittwater Council [2003] NSWLEC 19 ; Edgar Allan Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC DATES OF HEARING: 09/05/2005 and 29/11/2006 DATE OF JUDGMENT: 23 February 2007 APPLICANT Mr P Rigg, solicitor SOLICITORS LEGAL REPRESENTATIVES: Deacons RESPONDENT Mr C Legatt, SC JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 23 February 2007 10048 of 2005 Carolyn and Charles Taylor v Mosman Municipal Council JUDGMENT 1 This judgment is for an appeal under s 96(6) of the Environmental Planning and Assessment Act ("the Act") against the refusal by Mosman Municipal Council of an application to modify a consent granted by the Court on 29 June 2005. 2 The property is known as 26 Iluka Road, Clifton Gardens and has frontage to Iluka Road of over 16 m with a site area of about 700 sq m. The site adjoins the foreshore reserve to Taylors Bay that has a walkway from Clifton Gardens Reserve through the Sydney Harbour National Park. 3 The modification application is for the demolition of the basement and ground floor slabs and walls, with the exception of the chimney stack and surrounding wall, and reconstruction of these elements with new materials, together with other minor amendments. The siting and envelope of the dwelling house remains unchanged. 4 The consent issued by the Court in 2005 was for: 'alterations and additions' to an existing dwelling house; demolition of an existing pool; construction of a new pool; demolition of the existing garage; and erection of a new carport on the front boundary. The plans approved by the Court in 2005 showed the following building elements to be retained: o Basement level walls around the laundry, basement, wc, bathroom and storeroom; o Ground floor walls, external and internal and the wall surrounding the chimney on the eastern side boundary; o The basement and ground floor slabs. 5 The council approved a s 96 application for deletion of the swimming pool and various minor internal changes in June 2006, however, this is not a matter for these proceedings. 6 The seminal issue in the proceedings is whether the modification application is substantially the same development as that approved by the Court in June 2005. The development approved by the Court was for the retention of the basement/slab and first floor slab as well as the external walls and certain internal walls on both levels. These elements have now been subsequently and substantially demolished and this is shown in a plan marked up by the council at Exhibit 2. From this plan it can be seen that there is little of the original fabric retained, leaving only one section of wall below the chimney and the chimney itself. 7 The former cottage on the subject site had a gross floor area of approximately 285 sq m and of this about 72% was to be retained in the approved alterations and additions. This increased the gross floor area to some 348 sq m. That is some 58% of the gross floor area was comprised of the original fabric of the cottage and the addition of the new portion represented some 42%. 8 I note that the original cottage was not a heritage item nor is the site in a heritage conservation area. The only issue in the proceedings is whether the development for alterations and additions as originally approved is 'substantially the same development' to which consent was originally granted. The fact that demolition of the fabric to be retained has occurred and new construction has occurred is not in itself a matter for these proceedings because retrospective approval for s96 modifications can be granted. 9 A report recommending refusal of this s 96 application was presented to the council's meeting on 17 October 2006 and council resolved in accordance with the recommendation and issued a notice of determination with the following reason of refusal: The modified proposal does not constitute substantially the same development and no longer represents alterations and additions. The development consent has become void. 10 For the respondent it was submitted that there are no s 79C matters and these are not an issue in the proceedings. It was submitted on behalf of the respondent that the s 96 application is no longer constitutes 'alterations and additions' but rather a new dwelling is now proposed with only token elements of the chimney stack and part of the wall of the original cottage to be retained. In quantitative terms the area of the walls to be retained was 218 sq m in the approved application and it is now proposed that some 34 sq m of the wall surrounding the chimney be retained. 11 It was submitted on behalf of the applicant that during the construction it was discovered that the original fabric was not worthy of retention and that nothing in the original assessment of the application turned on retaining the elements proposed at that time. It was further submitted on behalf of the applicant that the changed circumstances justified the demolition and that under the BCA (Building Code of Australia) the existing fabric was not structurally sound. It was further submitted that Condition No. 25 in the Court's consent stated that all works are to be carried out in accordance with the requirements of the BCA. 12 The judgment Thomas v Pittwater Council [2003] NSWLEC 19 of his Honour Lloyd J was referred to the Court. In this matter the council granted development consent for alterations and additions to an existing dwelling house 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 Ltd 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 and 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 it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. 13 Lloyd J also referred to the matter of Moto Projects (No. 2) Pty Ltd v North Sydney Council wherein Bignold J said: The comparative task does not merely involve a comparison of a physical features of 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). 14 His Honour Lloyd J states: In applying … these two cases I must accept the submission of Mr Maston that the circumstances in which the consent was granted are relevant. … Acceptance of the fact that there were changed circumstances is not, however, determinative. The fundamental question remains whether the development as proposed to be modified can be said to be alterations and additions to an existing dwelling house. All that now remains of the existing dwelling house is part of the external wall facing the street and part of the external side wall, both of which are presently supported by temporary steel frame. It seems that nothing else in the former dwelling house remains. According to the evidence, only 14.5% of the externally visible fabric of the original dwelling would be retained by the modified development although only 17% of the externally visible fabric of the original dwelling was to be retained under the existing development consent, no part of the internal fabric of the original dwelling has been retained, whereas the development for which consent was granted retained the floor and certain internal walls. … 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. … The comparison must also include the way in which the development is to be carried out. In this respect the impact of the development as proposed to be modified would not necessarily be the same as the unmodified development. … I conclude therefore that the applicant has 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. 15 On behalf of the applicant Mr Rigg submitted that the modification sought will not alter or radically transform the approved development. He also submitted that the sandstone skin constructed was as proposed in the approved plan however, the internal brick wall behind the skin has been demolished. Therefore he submitted in terms of the external appearance it will be the same building as approved. He also submits that the external changes are of no environmental impact in that there will be new brick instead of the old brick under the skin of the sandstone cladding and that this change could have occurred following completion of the development. It was also submitted on behalf of the applicant that the fundamental descriptor of a three-storey dwelling house is not altered or changed by the application to modify the consent. 16 Mr Rigg submits that there would be no utility in requiring a building certificate for the existing structure and a new development application to be submitted when it is already half constructed and the s 96 modification application should be approved. In Mr Rigg's submission, he states in the circumstances of this case where there is no environmental impact created by the proposed modifications and where at the end of the day the completed dwelling for all intents and purposes will present as the same building envelope as that originally approved by the Court. 17 Whilst the modifications in the s 96 application do not lead to adverse environmental impacts at the same time, unfortunately for the applicant, the Court cannot ignore the legislative framework and the legal interpretations of case law to guide the assessment of modification applications. 18 On behalf of the council Mr Colin McFadzean manager of development services with Mosman Council gave evidence to the Court and he advised that there was no external impact or environmental impact caused by the modification application. In his opinion the approved application was accurately described as 'alterations and additions' to an existing cottage and in saying the test in his opinion is not the amount of floor space that was being added rather the extent of retaining the fabric of the existing dwelling. 19 It was submitted on behalf of the applicant that s 96(6) requires one to consider the relevant matters in s 79C including the impacts of the development and the suitability of the site. It was submitted that the modifications proposed means that the siting of the development remains materially the same as does the volume as does the height as does the external envelope. Therefore in assessing whether the modification application is substantially the same the changes have no consequence in terms of an assessment under 79C. Furthermore it was submitted that the conditions of consent anticipated certain demolition and compliance with the BCA. Mr Rigg also submitted that the new sandstone cladding should not have been identified as wall area to be retained because the new sandstone block cladding was approved as new work. 20 I do not accept that Condition 25 has the affect of overriding the plans approved. That is to allow further demolition to take place than identified in the approved plans. Mr Rigg further submitted that to say that it is not substantially the same development is a technical argument only and that one should look at the form and not substance. 21 On behalf of the respondent Mr Leggat, SC, submitted that the modification application was a radical transformation from the application approved as alterations and additions and he makes this submission having regard to the qualitative as well as the quantitative differences. On behalf of the respondent it was further submitted that the outcome of the modification application would result in the construction of a new dwelling as opposed to being described as 'alterations and additions', the descriptor of the 2005 approval. 22 I accept Mr Rigg's submission that each case must be looked at on its own facts and merits. However, even if I accept the fact that the sandstone cladding at the base of the walls for the approved development would read as new fabric, with or without the original brickwork behind. Nonetheless leaving aside this aspect of the modification application, I am still not satisfied that the development is substantially the same development in that the modification application transforms the approved development for 'alterations and additions' to one that could only be described as the erection of a new dwelling house. As such the s 96 modification application does not pass the threshold test of being 'substantially the same development'. 23 I appreciate that this is an unfortunate situation for the applicant as noted above as there are no environmental impacts that result from the transformation of the development from alterations and additions to the erection of a new dwelling house, but nonetheless the Court would be wrong to ignore the fact that the modification application would result in a new dwelling. Therefore failure of the threshold test does not allow a merits consideration under s 79 of the Act. 24 The fact that the concrete slabs and walls required demolition because they were structurally inadequate does not persuade me that it would be justified to approve the changes under the provisions of s 96 of the Act. The Court therefore is without power to approve the changes under the s 96 modification application. The changes proposed are of a nature and character that cannot be construed or contrived as being modifications to the same development. 25 While there are no issues in terms of adverse impacts that would arise from this s 96 modification application, at the same time in terms of public interest and certainty in the planning process there must be consistency for the assessment of changes sought in modification applications. While there are no heritage issues in this appeal, if the Court was to grant consent to this modification application, it could be used as a precedent to be invoked by other applicants to seek approval for alterations and additions to heritage items and then proceed to demolish the heritage fabric to enable the construction of a new building by seeking retrospective approval under s96. 26 In my determination of this matter I do not need to rely on the recent planning principle articulated in Edgar Allan Planning Pty Limited v Woollahra Municipal Council [2006] NSWLEC: However, the following paragraphs provide a guide: A development application to alter and add to a building will be taken to be that relating to a new building where 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. The proposal was readvertised as more than half of the existing external fabric of the building was to be demolished. I have considered the proposal to be a new development. 27 In dismissing the appeal I have assessed the individual facts and have concluded that the modifications are not substantially the same development for which consent was originally granted and therefore I am without power to grant consent. While this is regrettable for the applicant, at the same time it would be inappropriate for such an approval to be granted that had the affect of substantially changing a development from 'alterations and additions' to the erection of a new dwelling house. As indicated through the proceedings the applicant has the opportunity to apply for a building certificate under s 149 of the Act, for the works already carried out and then for a development application to be submitted for further construction works. 28 Accordingly the formal orders of the Court are: 1. The appeal in respect of the property known as 26 Iluka Road, Clifton Gardens, 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. ___________________ J S Murrell Commissioner of the Court rjs 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.