Land and Environment Court of New South Wales CITATION : Bandora Holdings Pty Ltd v Byron Shire Council [2009] NSWLEC 1317 APPLICANT Bandora Holdings Pty Ltd PARTIES : RESPONDENT Byron Shire Council FILE NUMBER(S) : 10323 of 2009 CORAM: Hussey C KEY ISSUES: SECTION 96 MODIFICATION :- Environmental Planning and Assessment Act 1979 Byron LEP 1988; Byron DCP 2002; LEGISLATION CITED: North Coast REP. SEPP 14 – Coastal Wetlands. SEPP 71 – Coastal Protection. Planning for Bushfire Protection Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 CASES CITED: Moto Projects No 2 Pty Ltd v North Sydney Council [1999] 106 LGERA 298 Shroders Australia Property Management Pty Limited v Shoalhaven Council [1999] 110 LGERA 130 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 DATES OF HEARING: 21 September 2009 DATE OF JUDGMENT: 2 October 2009 APPLICANT Dr S Berveling (barrister SOLICITOR Stacks the Law Firm LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton (solicitor) SOLICITOR Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 2 October 2009 10323 of 2009 Bandora Holdings Pty Ltd v Byron Shire Council JUDGMENT Background 1 This appeal is against council's refusal of a s96 application to modify aspects of a consent for a boarding house located at 80-84 Bangalow Road, Byron Bay. The development comprises 2 separate buildings that are connected by a walkway and provides for occupation on the basis of a minimum lease period of 3 months. It includes on-site parking for a minimum of 10 cars, 3 spaces for motorbikes, 14 spaces for bicycles and also the construction of an on-site stormwater detention system (OSD). 2 The Notice of Determination granting consent to operate from 20 August 2009, described the development as a 2-storey boarding house containing 24 bedrooms. The consent contained a number of conditions, including a limitation on the number of occupants to 24. 3 The modifications sought are summarised as follows: o Increase the occupancy from 24 to 36 persons. o Increase the car parking from 10 to 15 spaces, the motorcycle parking from 3 to 5 spaces and the bicycle spaces from 14 to 21 spaces. o Alter the proposed OSD by regrading the car parking area and the construction of a boundary bio-retention swale to prevent any contaminated run-off into the adjoining swamp area. o Change the level of bush fire protection. 4 The modification application was notified and 3 objections received. These objections relate to: o Excessive increase in the density of development, likely to cause noise disturbance and disamenity to surrounding residents. o Increased traffic will exacerbate traffic problems on Bangalow Road. o The changes to the drainage will result in increased flooding. 5 Insofar as a number of issues were identified, the threshold issue concerns whether the modifications relate to substantially the same development as approved. Subject to the determination of this question, the parties accept the expert planners and engineer's opinions that appropriate conditions of consent can be imposed to address the modifications. Planning controls 6 The property is subject to a number of controls, including: i. Byron LEP 1988; Under which the land zoned part No 2(a) – Residential and part 7(a) Wetlands. ii. Byron DCP 2002; iii. North Coast REP. iv. SEPP 14 – Coastal Wetlands. v. SEPP 71 – Coastal Protection. vi. Planning for Bushfire Protection. The evidence and submissions 7 The primary submission for council is that while the characterisation and the built form as a 'boarding house' remains the same for the modified development, nevertheless the proposed intensification of use by virtue of the 50% increase in occupancy renders it not substantially the same development. Also, the proposed modification is not of minimal environmental effect, taking into account the impact of increasing numbers of persons living in and around the environmentally sensitive vegetation and flood liable land adjoining. 8 In support of these submissions, Mr Seton refers to a number of cases that deal with the application s 102 and subsequent s 96 of the EP & A Act, particularly in Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, where Justice Stein said: "Turning to the issue of s 102(1)(a). Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion 'substantially' when used in this section means essentially or materially or having the same essence. The applicant for modification bears the onus of showing that the modified development is substantially the same."… "In approaching the s102 exercise one should not fall into the trap of saying that the development was for a certain use – extractive industry – 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 said to be carried out…". 9 Reference was then made to the judgement of Justice Bignold in Moto Projects No 2 Pty Ltd v North Sydney Council [1999] 106 LGERA 298 at 309 states: "The relevant satisfaction required by s 96(2)(a) to be found in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially" the same as the (currently approved development. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as well as quantitative, of the development being compared in their proper contexts (including) the circumstances in which development consent was granted." 10 In exercising the applicant's onus to show the modified development is substantially the same, Dr Beverling referred to the aforementioned judgements, together with Shroders Australia Property Management Pty Limited v Shoalhaven Council [1999] 110 LGERA 130, where Her Honour Chief Judge Pearlman said: 93. Despite Mr Daubney's opinion (which was not shared by Mr Sanders, Mr Giles or Ms Chapman) that the amendments were significant either in their own right or considered in totality as part of the whole of the proposed development, I have concluded that they are not so substantial or significant as to constitute in effect a new development application. In my opinion, the essential nature of the proposed development remained the same before the amendments as after them. It was a development comprising a discount department store, a supermarket, specialty shops, a community centre, car parking and landscaping, and it remained of that essential nature after the amendments had been made. The amendments are, in my opinion, matters of design, configuration and appearance. Whilst some of them may be significant, they do not change the essence of the development as initially proposed. 11 Reference was also made to the matter of 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 where His Honour McClellan CJ referred to possible adverse impacts arising from modifications on the following basis: 37 Furthermore, to my mind there is a difference between s 102 and s 96 which is of significance when reconsidering whether the decision in Benalup should continue to be followed. Section 102 only permitted modification when the consent authority was satisfied "that no prejudice will be caused to any person who objected "to the development application. Section 96 provides for modification both in circumstances where the modification involves "minimal impact" and otherwise, clearly contemplating that modification which brings adverse impacts may be approved. The only constraint on the breadth of the power is that the modified development must be "substantially the same" as that which was originally approved. It would be surprising if, although there is a more liberal capacity to approve an application for modification, there was no capacity, without the agreement of the applicant, to impose conditions on that approval ." 12 From these judgements, Dr Beverling addressed the following tests that have evolved from the various authorities, as follows: (a) Is the proposal an alteration without radical transformation (Ilenace)? YES, the development remains a boarding house comprising 2 buildings. The location on the site remains the same. The buildings are not proposed to be modified. (b) Will the modified proposal be essentially or materially the same development as, or having the same essence as, the development for which consent was originally granted (Vacik, Michael Standley, Schroders)? YES, the modifications retain the development as approved, namely development for the purpose of a boarding house comprising 2 buildings (unchanged) on a limited part of the site. (c) What conclusion arises from a comparison between the development for which consent was originally granted, and the development as proposed to be modified (Vacik; Moto Projects)? The development is substantially the same because: o It confirms the number of car spaces to be 15 spaces, 5 motorcycle bays and 3 bike racks for 15 bicycles; o Increases the occupancy to 36 residents; o Provides a system of bio-retention for stormwater infiltration; and o Amends conditions relating to construction standards insofar as they relate to bushfire protection. (d) Are there any environmental impacts of the proposed modifications relevant to the ultimate factual finding based upon the comparison (Moto Projects)? No; the modifications do not affect that part of the site zoned 7(a) Wetland, or that part of the site to which SEPP 14 – Coastal Wetlands applies. 13 Against this, M Seton's submission is that the development is substantially different and therefore should not be approved because: o The number of people occupying the premises is increased by 50% from 24 to 36. o The number of car spaces is increased by 50% from 10 to 15. o There is a significant increase in the car park area by some 220 sq m. 14 Furthermore, there will be different environmental impacts in respect of: o Noise. o Increase in traffic generation. o Parking impacts. o Potential disturbance of the sensitive ecological community and removal of at least 2 trees and changes to the bushfire protection zones. o Possible flood evacuation risks. Discussion of evidence 15 Having carefully considered the evidence and the submissions, I initially note that in the existing consent, the approved development is described as a 2-storey boarding house containing 24 bedrooms. The associated conditions then provide for leasehold occupation by 24 persons, with associated parking for vehicle, motorcycles and bicycles. It also includes the construction of a stormwater control and detention system. 16 Significantly then, the building design and appearance remains unchanged. Whilst the number of occupants is to be increased, nevertheless the original consent allowed residential usage of the building and that is to be retained, albeit at a higher rate. However, I consider this quantitative change is a merit matter that can be assessed, but I do not consider that this changes the fundamental nature of the ultimate development. Instead, this change is a matter for merit assessment. 17 Likewise, the approved development contains condition 18, which requires the provision of: "g) car parking for a minimum of ten (10) motor vehicles and a minimum of three (3) motorbikes…" In these circumstances, the original consent required the vehicle parking (I note the maximum number was not specified) and the modification now sought is basically consistent with this condition. The confirmation of the increased vehicle parking numbers is not a fundamental change in the essence of the development, in my assessment. Although, I accept that the merits of this number of spaces requires further assessment. 18 The other physical change raised by Mr Seton concerns drainage of the site/car parking area. In my opinion, the modification to regrade the car park and incorporate a bio-retention swale, in lieu of an OSD system is also a design matter, which does not change the essence of the development because the original consent required the provision of a form of stormwater control system. I consider the modified drainage proposal is a design detail that is consistent with the form of the original consent. 19 Insofar as submissions were made regarding the consideration any 'minimal environmental impacts', as required under s 96 (1A), I am satisfied any such impacts will be of a minimal nature, and therefore not such as to result in the refusal of this s 96 application, in accordance with the authority in 1643 Pittwater Road. 20 For these reasons, I do not accept Mr Seton's submissions that the modifications are of such significance that they change the essence of the approved development. Consequently, in my opinion the modified development is substantially the same as that approved and accordingly it is appropriate to assess the merits of the changes. 21 The merits of the modifications have been assessed by: o Mr C Larkin; council's senior town planner; o Mr R van Iersel; applicant's consulting town planner; o Mr J Begovic; council's subdivision engineer; o Mr D Thomson; the applicants' consulting engineer. 22 With regard the 'substantially the same' consideration', the planners declined to deal with this, even though it involves a factual assessment. Nevertheless in their joint report, they seem to be of the view that the restriction on numbers of occupants was related only to the quantum of car parking available. Furthermore, that this "restriction in occupancy was a result in the limited number of car parking spaces proposed and provided a means of calculating S94 Contributions and S64(?) Headworks Charges. 23 Whilst this agreed view was not verified by reference to the original development assessment report, nevertheless there was no compelling evidence to indicate that the increase in occupants would result in an unsatisfactory level of amenity. On the contrary, reference to the original s79C assessment shows that it considered the social and economic impacts as follows: Social and economic Byron Shire Affordable Housing Strategy recognises that the local population includes a diverse category of singles, single parents, divorcees, and widow/ers of all ages. The Strategy recognises that there is an under-supply of affordable one and two bedroom options for singles, and as a result many reluctantly 'share' houses. Boarding-houses are recognised as one of the options suitable to meet the varied needs of single people. The proposed boarding house is a form of housing in high demand in the Shire and will meet a pressing social need. 24 Consequently, I am satisfied that the modified development will satisfy the zone objectives to encourage a range of suitable housing types in appropriate locations. In the absence then of any compelling evidence, I am satisfied that the increased number of occupants should result in a reasonable environmental outcome. In this regard, I have taken into consideration that the residents are to have a minimum stay of 3 months and they will be subject to the provisions of a Plan of Management. 25 The planners have then agreed to the revised conditions dealing with the amendments and I rely on this agreement. 26 The drainage design and parking amendments were assessed by the engineers. They agree that due to the location of the site adjacent to the Cumbebin Swamp, then OSD is not required and that the grading and sealing of the expanded car park, incorporating a perimeter bioretention trench will result in a satisfactory environmental outcome, subject to compliance with agreed conditions. I rely on their agreement for the drainage amendments. 27 The engineers also assessed the increased parking proposals and agreed this could satisfactorily be covered by conditions of consent. They also recommended other conditions, including the importation of filling on the land to minimise future flooding, and I accept that compliance with these conditions should result in a satisfactory outcome. 28 As I noted initially, a number of objections were made concerning increased traffic, possible noise and disamenity arising from the increased population and flooding risks. Based on the foregoing engineers and planners assessments, I am satisfied that incremental changes from the proposed modifications are not of such magnitude to warrant refusal of this modification application. Conclusion 29 Having considered the evidence, the submissions and undertaken a view, I am satisfied that the proposed modifications do relate to substantially the same development as approved. 30 I have considered the merits of the modifications on the basis of the joint conferencing of the planners and engineers and in the absence of any substantive challenge, rely on their opinions that conditional approval should granted. Under these circumstances, I am satisfied that the provisions of cl 2A of the LEP are achieved. Likewise, the evidence of the engineers confirms that the provisions of cl 24 in respect of development of flood liable land is satisfied, so as to allow conditional approval. Court orders 31 The Court orders: 1. The appeal is upheld. 2. The Development Consent granted by the Respondent to development application No. 10.2008.262.1 dated 14 August 2008 for a "two storey boarding house containing 24 bedrooms" on the land known as Lot 22 DP 626953, 80-84 Bangalow Road, Byron Bay is modified by the deletion of conditions 1, 8, 12, 17, 28, 46, 52, 56, 58 and the "Schedule of Contribution" and replacing each with the corresponding conditions and Schedule of Contributions and adding new conditions 9A and 12A as detailed in Annexure 'A'. 3. The exhibits may be returned except 5, A, B, C, and D. ___________________ R Hussey 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.