Land and Environment Court of New South Wales CITATION : Pikoulas v Canterbury City Council [2008] NSWLEC 77 APPLICANT Mr Pikoulas PARTIES : RESPONDENT Canterbury City Council FILE NUMBER(S) : 10619 of 2007 CORAM: Moore C KEY ISSUES: Development Consent :- Application to modify LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pikoulas v Canterbury City Council (2007) NSWLEC 648 Pikoulas v Canterbury City Council (2007) NSWLEC 747 CASES CITED: Zhang v Canterbury City Council (2001) 115 LGERA 373 Newbury District Council v Secretary of State of the Environment [1981] AC 578 Manzie v Willoughby City Council (1996) NSWLEC 26. DATES OF HEARING: 23 January and 1 February 2008 EX TEMPORE JUDGMENT DATE : 1 February 2008 APPLICANT In person LEGAL REPRESENTATIVES: RESPONDENT Mr D Baird, solicitor Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE C 1 February 2008 10619 of 2007 Pikoulas v Canterbury City Council JUDGMENT This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. The consequence of the Court's decision in this appeal is modification of the detailed conditions of a development consent. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court's Orders may be obtained from the Court's registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ 1 COMMISSIONER: This is an appeal pursuant to s 96(6) of the Environmental Planning and Assessment Act 1979 against the refusal by Canterbury City Council of an application to modify a development consent given by the Council on 30 May 1996. 2 The application to modify, as originally lodged with the Council, effectively sought the deletion of the second sentence of condition 4 of the 1996 consent. The whole of condition 4 of the 1996 consent comprises two sentences. The condition reads as follows: "The rear building being used in conjunction with the existing dwelling and not as a separate dwelling. No kitchen facilities being provided within the proposed addition." 3 To make sense of that condition, it is necessary to describe Mr Pikoulas' property at 17 Crinan Street, Hurlstone Park. It is an allotment which runs roughly east-west between Crinan Street and Marcia Lane to the east. Erected upon the allotment are two buildings. The first, facing Crinan Street, is joined by party walls to the buildings on each side. It is the larger of the two freestanding structures on site and comprises a shop and some rooms at the rear and other rooms on the first floor which are used for residential purposes. 4 At the rear, fronting Marcia Lane is a garage with space above. The garage has a capacity of at least two vehicles for which car parking spaces are marked. Above the garage is constructed a large space functionally divided (but not entirely physically divided) into two rooms and a bathroom. In the eastern of those two rooms are kitchen and cooking facilities. The upper level of that space is a mezzanine floor comprising a single sleeping compartment and an en-suite bathroom. 5 Erected between the two brick structures are two less formal structures, one on the northern and one on the southern boundary. The structure on the northern boundary includes bathroom, toilet and laundry spaces – the laundry space of which at least is shared by all occupants on the site. The Council raises no concern about the legitimacy of this structure. 6 The structure on the southern side comprises an even less formal structure which Mr Pikoulas refers to as "a shed" and which I observed was being used, apparently, as an office and had a number of refrigerators located in it. The Council does not say in a determined fashion that this structure is unlawful. It simply says that it has unspecified and unresolved concerns about it. 7 The matter has been dealt with by the Court on two earlier occasions. On 13 September 2007, Bly C gave a decision in Pikoulas v Canterbury City Council (2007) NSWLEC 648. Mr Pikoulas appealed against that decision pursuant to s 56A of the Land and Environment Court Act 1979 and, on 9 November 2007, Preston CJ gave a decision in Pikoulas v Canterbury City Council (2007) NSWLEC 747 upholding the appeal on the narrow ground that that matter which had been determined by Bly C, that is that it was not appropriate to permit the removal of the first sentence of condition 4 was not what was in fact applied for in Mr Pikoulas' modification application of 21 August 2006. His Honour held that, in so determining that issue, Bly C had committed an error of law and the matter has as a consequence been sent to me on the remitter to deal with in accordance with his Honour's determination. 8 The matter came before me on 23 January 2008 where it became clear that what Mr Pikoulas sought to do (and thought he had sought to do in his application) was to seek the deletion of the totality of condition 4. Although opposed by the Council, for reasons I gave on that day, I considered it appropriate (and consistent with the objectives of the Court in dealing with matters quickly, efficiently and with the least expense to the parties), to grant Mr Pikoulas leave to amend his s 96 application to seek the deletion of the totality of condition 4. 9 That being the case, as I had not had the opportunity to inspect the site on that day, I adjourned the matter for a further hearing today following a site inspection. I undertook that site inspection. 10 I record that on both the occasion in the Court on 23 January and today on site and in the Court, I have had the assistance, as has Mr Pikoulas, of interpreters provided through the Community Relations Commission of New South Wales to assist Mr Pikoulas in the Greek language and, through the interpreter, to me in translating Mr Pikoulas, as necessary, into the English language. 11 When the matter was before Bly C, three broad grounds of objection were pressed, one of which was in two parts. The broad grounds of objection were: o First, the proposal to use the rear element of the premises as a dwelling was contrary to the provisions of the Canterbury Local Environmental Plan No 138; o Second, the (now amended) application to modify sought a modification that would not leave the development substantially the same as that which was originally approved and that that would be contrary to the provisions of s 96(1A)(b) of the Planning Act; and o Finally, the provision of the parking spaces (briefly described above) at the rear of the site was both contrary to the provisions mandated by Development Control Plan 20 and was also of unacceptable environmental impact. 12 I had the opportunity this morning of inspecting the site of walking Marcia Lane (being the roadway to the rear) and Crinan Street (being the roadway at the front). During the course of that inspection, I observed the following with respect to vehicle parking: o On Crinan Street, on its western side in the commercially zoned area within which the site is located, there are sixteen vehicle parking spaces. At the time of the inspection and at the time of the abortive visit on 23 January, at all times when I observed Crinan Street, there were vacant parking spaces on one or both sides of the street. o In addition to the sixteen parking spaces on the western side of the street, there are twelve parking spaces on the eastern side of the street divided into a number of portions. o Each of those twenty eight Crinan Street parking spaces is one hour parking limit. In addition, on the eastern side of the street at the southern end closest to the railway station, there is a half hour parking zone capable of accommodation two small vehicles or one substantial van. o In Marcia Lane, on the eastern side of the street, I observed that there appeared to be space for four vehicles in a row opposite Mr Pikoulas' property and a further lawful parking space at the northern end of the lane (but this being a parking space which might be difficult to use given the fact that it would partially block access to a building which had a vehicular access directly onto and down Marcia Lane. 13 I also observed, in the commercial shopping strip of Hurlstone Park on the northern side of the railway line in Crinan Street, that there were three vacant shops – one on the western side and two on the eastern side including Mr Pikoulas' shop premises. There were also three shops used as residences, all three of those being located on the western side of Crinan Street. 14 In the middle of (but slightly towards the north) the western side, in the commercial section of Crinan Street, are located three residential flat buildings which appear to have been there since the 1950s or 1960s. They did not have vehicle access to Crinan Street. I have no evidence as to whether or not they have off street parking to the rear or not. Under the circumstances, I am satisfied that is not a matter about which I need inquire. 15 As to the provisions of the Local Environment Plan, the site is zoned 3A General Business Zone and a variety of relevant uses are permitted in it, two of which are pertinent to these proceedings. The first is dwellings with office premises or shops which is permissible with consent and the second is multi-unit housing with office premises or shops which is also permissible with development consent. 16 Although the issue was canvassed before Bly C (but I note was not pressed before me today), I am satisfied that the proposed development does not constitute a dual occupancy development as defined in the LEP. I reach that conclusion by a combination of the development control table in cl 10 and a consideration of the fifth footnote to the development control table which, with respect to dual occupancy development, takes one to the provisions permitting purely residential subdivision of a dual occupancy. This leads me to the conclusion that two dwellings with a shop is not capable of subdivision pursuant to that clause on an ordinary reading of it. Therefore, a shop and two dwellings cannot be dual occupancy. 17 In this context, I turn to a calculation of the parking requirements for the site. If the site is to be regarded as dwellings with a shop, it can only have two dwellings attached to it before it becomes a multiple unit housing development which means a group of three or more dwellings (whether or not detached), but does not include townhouses or villas. Three dwellings on this site would not be townhouses or villas, thus would be multiple unit housing. Therefore, if there were three dwellings, the site would attract the provisions of DCP 20 with respect to dwellings attached to other uses permissible in a zone coupled with the parking requirements for multiple unit development and shops. If it is, I am satisfied, on a reading of the relevant provisions on pages nine and ten of the DCP, to be treated as a development of a shop with houses (limited to two houses), it does not attract any penalty parking loading above that required for the shop itself. That, it seems to me, is the necessary and logical meaning of the reading of the three dot points under the heading Dwellings Attached To Other Uses Permissible In The Zone. 18 If that be correct, then as far as DCP 20 goes, Mr Pikoulas is required to have one car parking space for his shop and if he has only two dwellings on the site, he is not required to have any additional parking. If he had three dwellings on the site, depending on the number of bedrooms that were involved, he would require a minimum of four car parking spaces on the site and if all of the developments had a sufficient total number of bedrooms requiring it, it would be possible that he would require five car parking spaces. That is not a matter that I need to consider or determine in these proceedings. 19 What I do need to consider, and have determined, is that for two dwellings plus a shop on the site, only one car parking space is required. The consequence of that is, if I permit two dwellings by the deletion of condition 4 this entirety satisfies the parking requirements of DCP 20. 20 Zhang v Canterbury City Council (2001) 115 LGERA 373 requires that I should use the provisions of the development control plan as the focal or starting point of my consideration of the merit assessment of any policies, prescriptions, instruments and the like that might apply on the topic to the site. In this case, I have concluded that the site has a surplus of parking for two dwellings plus a shop when assessed against DCP 20. 21 I then turn, as Zhang tells me I am permitted to do, to the broader question under s 79C of the Planning Act to consider the issue, pursuant to s 96(1A)(a), as to whether, on parking grounds, two dwellings and a shop would have more than a minimal environmental impact. I am satisfied that they would not have more than a minimal environmental impact and that parking constitutes no basis pursuant to s 96(1A)(a) to reject the application. I have reached that conclusion for the following reasons. First, the satisfaction of DCP 20 (and indeed a satisfaction in surplus of the DCP's requirements) is a powerful starting point in favour of Mr Pikoulas' position. 22 Second, I am satisfied, on the basis of: o the provision of twenty eight parking spaces of one hour duration on Crinan Street and the small amount of half hour parking spaces (questions raised by Mr Pikoulas of enforcement or otherwise of the restrictions not being a matter for my consideration); and o proceeding on the basis, as I understand I am obliged to, that those restrictions will be obeyed and the parking will turn over at that rate; o coupled with the number of premises used as residences - setting aside the question of vacancy of premises but assuming that they would be occupied for commercial purposes; and o my observation now on two occasions, mid-week, mid-morning, that there was a surplus of parking over demand; o coupled with the fact that there are at least four and possibly five parking spaces in Marcia Lane at the rear of the site, in addition to the accepted surplus of one at least space on Mr Pikoulas' property; and o finally observing that today (but not on the earlier occasion because I did not enter Marcia Lane in Mr Pikoulas' absence on that occasion), none of the parking spaces on Marcia Lane were occupied, that there would be no adverse environmental impact occasioned by the parking arrangements available if two dwellings were to exist on the property. 23 For those reasons, I reject the arguments founded on compliance with the development control plan and the arguments founded on general considerations under s 96(1A)(a) of the Planning Act. 24 That, however, is not the end of the matter. The effect of deletion of the first sentence of condition 4 does not, I am satisfied on the material presently before me, constitute the granting by modification of a consent for there to be one shop and two dwellings on the site. All such deletion would achieve would be to remove the restriction on the rear building being used as a dwelling. 25 There are two matters that arise as a consequence of that. The first is that which arises from s 96(1A)(b) as to whether the proposed modification would be substantially the same development if granted as the application for which consent was originally given before any modification was made. 26 It is at this point that I note that the Council does not oppose the deletion of the second sentence of condition 4, that is the removal of the words which impliedly restrict the use of the games room to being a games room rather than a living dining room and expressly prohibits the installation of kitchen facilities. It does not suggest such deletion offends the "substantially the same development" requirement. To that extent, at least as I have advised Mr Pikoulas during the course of the proceedings, his appeal will be upheld. 27 However, in my consideration of the issues under s 96(1A)(b), I am not permitted to have regard to that modification of the consent in assessing the question of whether the second element sought to be removed, that is the first sentence of condition 4, is impacted by the removal, by concession by the Council, of the second sentence of condition 4. I am obliged to consider whether the removal of the first sentence in condition 4, if granted, would leave a development consent that was substantially the same as that which was originally given consent in 1996. I am satisfied that it does not. 28 The reasons for that are as follows. The development application in 1996 applied for the use of the rear premises as a residence. That was expressly refused and that refusal is contained in the first sentence of condition 4. The essence of the use, by the imposition of that consent in the terms made, was to confine the use of the rear section of the premises to being a conjunctive use with the use of the front section of the premises (whether or not being the totality of the front section or merely the residential portion of it). 29 I am satisfied that it would therefore be a fundamental and major alteration so that, if I deleted the first sentence of condition 4, it would not be substantially the same development as was originally approved. For that reason, as a question of application of the provisions of s 96(1A)(b) to the application, I am satisfied that I should refuse that portion of the application relating to the deletion of the first sentence of condition 4. 30 That does not mean that a separate development application for deletion of the first sentence of condition 4 might not be capable of being entertained, considered and determined by the Council and if determined contrary to Mr Pikoulas' interests, be capable of a further appeal to this Court which would permit the broader issue to be canvassed than is available under s 96(1A). 31 However, I should make this abundantly clear, that if I am wrong about my interpretation of s 96(1A)(b), I would also decline, as a matter of discretion, to delete the first sentence of condition 4 using the modification application process. I would decline to exercise that discretion for the following reason. 32 During the course of the site visit this morning, it appeared obvious, on the present configuration of the buildings, it was possible that, if I acquiesced in the removal of the first sentence of condition 4, that the building could be used for a shop plus three dwellings rather than a shop plus two dwellings. 33 As I have earlier explained in dealing with the issue of parking provisions of DCP 20, the step from two to three dwellings is one which has significant and fundamental impacts on the number of parking spaces required pursuant to the development control plan and triggers entirely different questions of consideration in response to the guidance given by Zhang when considering the adequacy or otherwise of compliance with the parking provisions if the site were to be regarded as multi-unit housing (being three or more dwellings coupled with shops). 34 A separate development application seeking deletion of the first sentence of condition 4 would permit, consistent with the principles in Newbury District Council v Secretary of State of the Environment [1981] AC 578, the imposition of a range of conditions in response which could deal with the question of ensuring that, for parking reasons, a deletion of the first sentence of condition 4 limited use of the site to a shop and two dwellings - if that were the appropriate merit consideration outcome of such an application. As it would be contrary to the matters discussed by Bignold J in Manzie v Willoughby City Council (1996) NSWLEC 2. if I were to occasion any commentary that might be considered relevant to those merits. I do not do so. If such an application is made, that is a matter for the Council, in the first instance to consider, untrammelled by any gratuitous comments that might come from me. 35 It would seem to me, therefore, that the necessary outcome is that the appeal is upheld; that the orders of the Court should be that Development Consent 8256/96C should be amended (but only by the deletion of the second sentence of condition 4) and that, under the circumstances, the exhibits should all be returned – as should the bundles of material that have been filed by Mr Pikoulas (but to which I did not need to have regard given the comparatively narrow range of matters I have been obliged to consider in these proceedings). Tim Moore Commissioner of the Court 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.