Land and Environment Court New South Wales Medium Neutral Citation: Geitonia Pty Limited v Leichhardt Council [2012] NSWLEC 1263 Hearing dates: 5 and 6 September 2012 Decision date: 06 September 2012 Jurisdiction: Class 1 Before: Moore SC Decision: (1)The appeal is dismissed. (2)Application to modify development consent D/2002/668 granted by Leichhardt Council on 22 December 2005 is determined by refusal. (3)The exhibits, other than Exhibits A, B and 5, are returned. Catchwords: MODIFICATION OF DEVELOPMENT - consistency with original approval; quantitative and qualitative assessment Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 Leichhardt Local Environmental Plan 2000 Cases Cited: Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Vacik Pty Limited v Penrith City Council (1992) NSWLEC 8 Category: Principal judgment Parties: Geitonia Pty Limited (Applicant) Leichhardt Council (Respondent) Representation: Dr S Berveling (Applicant) Ms A Hemmings (Respondent) Ms A Penklis Penklis Lawyers (Applicant) Ms R McCulloch Pikes Verekers Lawyers (Respondent) File Number(s): 10527 of 2012 ex tempore Judgment 1SENIOR COMMISSIONER: For over 100 years the building at 113 Parramatta Road, Annandale has formed part of the streetscape on the northern side of that road leading from Johnson's Creek up the hill to Johnston Street in Annandale. 2The contribution that the built form at the frontage of that building has made to Parramatta Road has deteriorated over the latter period of its life as is evidenced by two documents in the material before me. The first is a heritage study prepared by John Oultram Heritage and Design of May 2001 and the second is a photographic record of the building's exterior prepared by Cam Consulting dated 8 July 2011. 3The site is the subject of a development consent that was granted on 22 December 2005 for the construction of a mixed use development that is described, in the terms of the consent, as being: Retention of part of the existing building including the majority of its front and side facades and the stepped front veranda cantilevered over Parramatta Road footpath. Demolition, excavation and construction of a mixed commercial and residential development comprising eleven commercial units and twenty four residential units in two separate buildings over a basement car park accommodating forty cars and associated works including landscaping and remediation of the site. 4The plans that are referred to in the development consent include plans prepared by Taylor Consulting Pty Limited on how the facades that were proposed to be retained should be supported and protected during the course of demolition so that they could be retained and incorporated in the development as it would have finally been constructed as envisaged by the development consent. 5For reasons that are irrelevant to my consideration, retention of the façade has not occurred and it has, to all intents and purposes with respect to the Parramatta Road frontage, been demolished with limited portions of the eastern and western return wings retained. 6The matter that comes before me for determination is whether an application to modify the development consent in a fashion that would have the façade reconstructed (partially in new material and, to the extent possible, in salvaged material from the original façade) should be approved pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979. That application is rejected by the council on its merits as not satisfying either of the tests that have been laid down over many years for assessing whether a development modification will result in, if approved, a development that remains substantially the same development as that for which consent was originally given. 7The original proposition was discussed by Stein J in Vacik Pty Limited v Penrith City Council (1992) NSWLEC 8 in which his Honour said in that unreported decision "In my opinion, substantially when used in the section"- that is the section that was then application for modification applications but remaining relevant now - "when used in the section means essentially or materially or having the same essence." 8That interpretation was endorsed by the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. In the leading judgment written by the President of the Court of Appeal at p 475, the President said: The meaning of substantially the same development is discussed by Stein J in Vacik Pty Limited v Penrith City Council. It gives the identifying details and indicates that the President respectfully agrees with that construction. I will return to that decision shortly. 9More recently, Bignold J in Moto Projects (No 2) Pty Limited v North Sydney Council (1999) 106 LGERA 298 at p 309, dealt with the test that had been discussed by Stein J and by the Court of Appeal in terms as follows: 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 quantitative of the developments being compared in their proper contexts including the circumstances in which the development consent was granted. 10It has been the practice to consider those two propositions, that is the quantitative nature of the modification and the qualitative nature of the modification, as two separate tests both of which need to be satisfied if the modification application is to be approved as resulting in a modified development that will be substantially the same as the development for which consent was originally given. 11In this instance, the questions of quantitative and qualitative are informed by some considerations in common but equally by some considerations of quite differing import. 12I turn first to deal with the question of the quantitative aspect of the modification application. In doing so, it is appropriate to make reference to the site inspection that was undertaken during the course of which I inspected (accompanied by the legal representatives of the parties and those advising and instructing them) those remnant elements of the façade that had been stored - some on the site and others at an address some two blocks further to the east (the material to the east comprising solely of brickwork remnants). 13The material that was stored on site was somewhat dilapidated, had in many respects been disassembled and was not accompanied in any fashion by any annotation as to provenance - so that for example, several of the upper level French doorway sets that were retained and were, on the evidence of Mr Staas, the applicant's heritage expert, capable of restoration, were not able to be identified as to the element from the first floor from which they had been removed. Other elements were significantly deconstructed so that although the nature of the element was able to be identified, its provenance from the original fabric was not able to be ascertained. That is an issue that primarily is engaged in my opinion in the second question, that is the qualitative nature of the proposed modification. 14There were, in the opinion of Mr Moore, the heritage expert for the council, three distinct elements to the façade that had faced Parramatta Road. On my understanding of Mr Staas' evidence, he would have in broad terms treated it as four elements but I do not consider that the nature of these divisions which I will describe shortly are in conflict. 15Essentially Mr Moore considered that the ground floor shop fronts were the first (and in his view the most important) of the elements facing Parramatta Road. The second element was the balcony and the French doors and single doors to the veranda at the first level and then, finally, there was a parapet face above that with a series of finials located along it at regular intervals with a raised pediment in the centre of the building. It was Mr Moore's opinion, as I understood it, that the greatest concern arose with respect to the shop front element of this frontage. 16Mr Staas identified the same three elements but, as I understood him, drew a distinction between the veranda element at the first level and the brick façade including the French doors and the like, he drawing that distinction because, as he described it, the veranda had been substantially (if not virtually entirely) reconstructed on two separate earlier occasions, a reconstruction evidenced, as he pointed out, by the attempt to replicate original upright posts that were stored on the site - with those posts stored on the site approximating but not identical to the original posts that remained. 17There is photographic material in evidence. The photographic record of May 2001 shows, for example, at p 19 two photographs of shop facades that are in a form said by Mr Staas to enable them to be replicated in a rebuilding of a replacement façade. 18In the more recent photographic report in the Cam Consulting document at, for example, photograph P36, there is sufficient detail provided to enable reinstatement of the French door and side panel structures on the upper level and that in the photographic record of Cam Consulting, it would be possible to obtain the necessary certainty as to what should be the finials and the corbelling in the brickwork immediately below. 19Mr Moore objected to the conclusion drawn by Mr Staas that it would be possible to reconstruct with sufficient faithful replication of the original what would amount to a new façade that included some limited elements of the old and possibly - depending on the extent to which the original bricks were able to be used - something varying between considerable to extensive new elements in the proposal. 20It was my note of Mr Staas' oral evidence that what would result would not be the original building but an interpretation of the original building and that, to the ordinary observer, the ordinary observer would understand the building as a contributor to the Victorian streetscape of this section of Parramatta Road. 21Although Mr Moore expressed concern at the extent to which there could be original material incorporated in a reconstruction and the precise extent to which detailed dimensions would be able to be derived from the 2001 and 2011 photographic records, I am satisfied that the physical form that would be achieved, if the modification application were to be approved, would be such that (subject to appropriate conditions) the quantitative element of that which would be on the site would be sufficiently similar so as to satisfy the quantitative element of the test posed by the statutory provisions. 22Perhaps a different position arises with respect to the qualitative aspects which is a more difficult proposition. I should observe that the first conclusion (that is the quantitative conclusion I have reached) has regard to the comment in Michael Standley that the provisions of permitting modification are to be regarded as facultative and beneficial. Under those circumstances the concerns that Mr Moore might have about the quantitative elements are not sufficient to set aside that facultative and beneficial interpretation. 23A different proposition arises qualitatively, however. The plans make it quite clear at DA5001 and DA5002 that substantial elements of what Mr Moore described as the most important element of the façade that had existed (that is the shopfronts) were to be renovated and restored with traditional detail in situ. There were seven shopfronts that had been in the original façade - numbered from east to west from one through to thirteen. Shopfronts five, nine and eleven were described in the plans as being renovated and restored with traditional detail - by necessary implication, I am satisfied, in situ with the shopfront of shop seven being removed and replaced into the frontage of shop three so that there would be an opening through the centre of the development to create a portico access to the residential areas behind. 24It is also obvious from the elevation in DA5001 that it was envisaged that the various apertures, single and double doors, at the upper level would also be renovated in place rather than demolished and taken off site in some fashion. Certainly, they were to be renovated as part of the retention of the wall. That is a significant qualitative difference in the construction processes that were envisaged in the original development consent and which are now, self evidently, unable to be carried out. 25There is also an important heritage distinction to be made between that which was approved and that which would be approved if the modification were to be permitted. The joint report of the heritage experts make it clear at the fourth paragraph on p 3 that the demolition undertaken does not sit compatibly with the objectives of cl 15, Heritage Conservation Objectives in the Leichhardt Local Environmental Plan 2000 (LEP). 26Consideration of that clause makes it clear that the assessment that the council officers undertook in recommending the approval of the original application was that that which was proposed was consistent with the objectives of that clause of the LEP. The LEP is the principal environmental planning instrument created within the framework established by the parliament for the regulation of planning and development in the State that informs development in this local government area. 27Development that is inconsistent with objectives is not likely to be approved and certainly, in my view, is distinctly qualitatively different from development that complies with objectives of a specific provision of the LEP. Indeed, I am of the view that that distinction, that is the qualitative difference between something that is compliant with the LEP and a proposed modification that is not compliant with the objectives of a critical provision of the LEP, is sufficient in itself to warrant refusal on a qualitative basis of this modification application. 28It is clear from the council assessment report, as well, that one of the reasons why the council agreed to permit approval a development that was otherwise not compliant with a development standard as to floor space ratio was the benefit that would be obtained for the streetscape by the retention of the façade of the Victorian building that was there. 29I am satisfied that, consistent with what has been said on a number of other occasions, a single element can be of such significance to be fundamental to a development as to inform the essence of the consent for which the development was given. 30In this instance, it is clear to me from the council officer's report and from the other documents that retention of the façade was a significant and fundamental element of the development so that, even though the nature of the development if modified would remain a mixed use development with a presentation to Parramatta Road of the nature described by Mr Staas, the qualitative element that informed the council in its decision making process concerning the façade was of such importance and significance as to reflect a substantial qualitative element that is now to be lost. 31I am satisfied on the basis of the evidence that was given by Mr Moore about the value of retention of the original that it is appropriate for me to adopt that significance for the purposes of this decision. Whilst it is true that, to a casual observer as Mr Staas commented, there would still be a consistency in the streetscape, it will have lost its original character. It will be, I accept, in a quantitative sense sufficiently accurate to provide that streetscape context to the ordinary observer but I am not satisfied that the precision that might be required would be able to be achieved in a qualitative sense. That, however, is of lesser importance than the fact that as Bignold J observed in Moto the circumstances in which the approval was granted are relevant. 32I do not have regard to the fact that the council might not have approved the objection pursuant to State Environmental Planning Policy No 1 for noncompliance with the floor space ratio if the façade had not been retained. I do not consider that the council officer's report that comprises exhibit 7 makes it so obvious that that is the sole or dominating reason. 33However, the council officer's report does make it obvious that the circumstances of the development consent were such that the retention of the façade was such a significant element in the overall nature of the proposed development as to inform significantly the qualitative nature of the development that was approved by the council. 34As a consequence, I am satisfied that on that basis alone the application would also warrant refusal. 35I am certainly satisfied that, if I am wrong in adopting the view that each of those elements (that is the non compliance with the objectives of cl 15 of the LEP and the nature of the importance of the retention of the façade) were each individually of such importance as to warrant refusal of the application, collectively, they so warrant. 36As a consequence, the orders of the Court are that: (1)The appeal is dismissed. (2)Application to modify development consent D/2002/668 granted by Leichhardt Council on 22 December 2005 is determined by refusal. (3)The Exhibits, other than Exhibits A, B and 5 are returned. Tim Moore Senior Commissioner 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. Decision last updated: 20 September 2012