Land and Environment Court New South Wales Medium Neutral Citation: North Shore Property Developments Pty Ltd v Lane Cove Council [2013] NSWLEC 1140 Hearing dates: 15 & 16 July 2013 Decision date: 31 July 2013 Jurisdiction: Class 1 Before: Tuor C Decision: (1)The appeal is dismissed. (2) The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify, under s 96(2), the development consent DA10/200 for a residential flat building at 532 - 534 Mowbray Road and 72 - 74 Gordon Crescent, Lane Cove, is refused. (3) The exhibits, except Exhibit 4, may be returned. Catchwords: DEVELOPMENT CONSENT - amend development consent for a residential flat building. Whether substantially the same development. Impact of additional storey. Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Lane Cove Local Environmental Plan 2009 Cases Cited: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351 Urban Link Pty Ltd v Lane Cove Council [2011] NSW LEC 1279 Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992) Category: Principal judgment Parties: North Shore Property Developments Pty Ltd (Applicant) Lane Cove Council (Respondent) Representation: Counsel Ms S Duggan SC (Applicant) Mr P Tomasetti SC (Respondent) Solicitors Gadens Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 10261 of 2013 Judgment 1This is an application under s 96(8) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify, under s 96(2), the development consent DA10/200 (Original Consent) for a residential flat building at 532 - 534 Mowbray Road and 72 - 74 Gordon Crescent, Lane Cove (site). 2The key issues in dispute between the parties are whether the development is substantially the same development as that approved in the Original Consent and whether the proposed additional storey is acceptable. The site and locality 3The site comprises Lot 2A DP 400225, Lot 3A DP 396637 and Lots 14 and 15 DP 27911. It is located on the southern side of Mowbray Road and the northern side of Gordon Crescent. It is irregular in shape with an area of 3110.98 sq m. The site has a frontage of 36.58m to Mowbray Road and a 43.125 m frontage to Gordon Crescent with a depth of about 82m. There is a fall of approximately 17.84 m from Mowbray Road to Gordon Crescent. The residential flat building approved under the Original Consent is currently under construction on the site. 4Adjoining the site to the east is a residential flat building with a frontage to Mowbray Road (530 Mowbray Road) and a residential flat building fronting Gordon Crescent (76-82 Gordon Crescent). To the west, there are dwelling houses (62 to 70 Gordon Crescent) that form part of a development application for a residential flat building, which is subject to separate appeal proceedings in the Court. To the north, across Mowbray Road, are residential flat buildings and a five storey aged care facility which includes a public library. To the south, across Gordon Crescent, is a bushland area, known as Batten Reserve. 5The locality is a mixture of detached dwellings and residential flat buildings, including those under construction at 76-82 Gordon Crescent, 18-24 Mowbray Road and 7-13 Centennial Avenue. Background and proposal 6The Original Consent was approved by the Court on 27 September 2011 (Urban Link Pty Ltd v Lane Cove Council [2011] NSW LEC 1279) for the demolition of the four existing dwellings on the site and the construction of a four storey residential flat building containing 46 dwellings with basement parking for 80 cars. 7Council approved an application under s 96AA on 23 July 2012 for 53 units and basement parking for 83 cars. 8The Court made orders on 4 March 2013 under s 34 of the Land and Environment Court Act, which approved a further application under s 96AA for 57 units and basement parking for 90 cars (Appeal No: 11264 of 2012). 9The current application under s 96(8) of the EPA Act seeks approval to modify the Original Consent under s 96(2) of the EPA Act to provide 63 units and basement parking for 100 cars in a part 4/part 5/part 6 storey residential flat building (Application). Planning controls 10Section 96 of the EPA Act relevantly provides: (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and (c) it has notified the application in accordance with: (i) the regulations, if the regulations so require, or (ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and (d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be. Subsections (1) and (1A) do not apply to such a modification. (3)In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application. (4)The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified. ... (8) Modifications by the CourtThe provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A) (c) or subsection (2) (b) and (c) are to be exercised by the relevant consent authority and not the Court. 11The parties disagree on whether the development proposed in the Application is substantially the same as the development approved in the Original Consent and therefore whether it meets the jurisdictional test imposed by s 94(2)(a). 12The site is zoned R4 - High Density Residential under Lane Cove Local Environmental Plan 2009 (the LEP). The proposed development is permissible with consent. 13Clause 2.3(2) of the LEP requires the consent authority to have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. The R4 High Density zone objectives are: · To provide for the housing needs of the community within a high density residential environment. · To provide a variety of housing types within a high density residential environment. · To enable other land uses that provide facilities or services to meet the day to day needs of residents. · To provide for a high concentration of housing with good access to transport, services and facilities. · To ensure that the existing amenity of residences in the neighbourhood is respected. · To avoid the isolation of sites resulting from site amalgamation. · To ensure that landscaping is maintained and enhanced as a major element in the residential environment. 14At the time the Original Consent was granted, the maximum building height under cl 4.4 of the LEP was 12m and the maximum floor space ratio (FSR) under cl 4.5 was 2.1:1. The LEP was amended on 18 January 2013 to permit a maximum building height of 14.5m and a maximum FSR of 1.6:1. The proposal complies with both these numerical standards. 15Lane Cove Development Control Plan 2010 (DCP) applies to the site which is within Locality 6 - Mowbray Precinct. The provisions for the Mowbray precinct have been amended to permit four residential storeys within the 14.5m height limit under the LEP. The evidence 16The Court visited the site and heard expert planning evidence from Mr A Darroch, for the applicant, and Mr H Sanders, for the council. Substantially the same development 17Mr Darroch and Mr Sanders disagreed on whether the development proposed in the Application is substantially the same as that approved in the Original Consent. They prepared the following Table which compared the Original Consent against the Application: TABLE 1 Original Consent This Modification ("the third modification") LEC approval 27.09.11 The Development The Development Demolish 4 houses and erect 4 storey RFB with 46 units and basement parking for 80 cars Demolish 4 houses and erect 5 (in part 6) storey RFB with 63 units and basement parking for 100 cars The attached diagrams show that the original approval was in fact part 4, part 5 (6%) and part 6 (1%) residential storeys. The attached diagrams show that the proposed amendment is in fact part 4 (14.6%), part 5 and part 6 (1.1%) residential storeys. Key Standards Key Standards Height - 12m (RL 61.55) compliant Height - 14.5m (RL 64.3) compliant No of storeys - part 4/part 5/part 6 No of storeys - part 4/part5/part 6 FSR - 1.5:1 compliant FSR - 1.6:1 compliant 7% increase Unit Mix: Unit Mix: 8 x 1BR 26 x 1BR 35 x 2BR 30 x 2BR 3 x 3BR 7 x 3BR Resident Population Resident Population 84 persons 105 persons Excavation* Excavation* Depth of Excavation to RL 35 Depth of Excavation to RL 30.9 14,443m3 Additional 7,293m3 Total 21,726m3 50.53% increase Building Footprint Building Footprint (as per attached diagrams) 1,477m2 1,431m3 3.2% increase Summary 37% increase in the number of units, 25% increase in the resident population, 50% increase in the quantum of excavation and 25% increase in the number of parking spaces. * see comments below 18The experts, in oral evidence, also agreed that the conditions of the Original Consent in relation to matters such as parking layout and garbage truck access had effectively approved part of the additional basement area and excavation below RL 35. They estimated the additional excavation to be about 3,646cum, which represents about a 20% increase above that approved under the Original Consent. 19Mr Sanders also provided figures on the increase in maximum daily vehicle trips, which he understood were based on the Guide to Traffic Generating Developments. However, both he and Mr Darroch acknowledged that this was beyond their expertise and while there would be an increase in daily vehicle trips resulting from the increased number of units, they were unsure of the amount. 20Mr Sanders and Mr Darroch also compared the changes to the floor plans, elevations and sections between the Original Consent and the Application (Exhibit 6). They agreed on the quantitative extent of the changes but drew different conclusions on their qualitative impact. The changes included alterations to the internal layout of each floor, including the number and arrangement of units, the location and number of lifts, the orientation and location of balconies, windows and doors, different floor levels, increased number of storeys, changes to the building setback from the eastern boundary and landscaped area and resultant changes to the elevations and sections. 21In Mr Sanders opinion, the extent of changes resulted in a substantially different development to that which was originally approved. In particular, the increase in the number of units, storeys and overall height of the building "manifests itself in a material increase in the bulk of the above ground part of the building". 22Whereas, Mr Darroch considered that a number of the changes resulted from conditions of consent such as the rearrangement of the accessible units and provision of garbage chutes as well as design refinements to improve the amenity of occupants. In his opinion, the "material and essential" features of the development are retained. He stated: The development is and remains a residential flat building orientated north south stepping down the site between Mowbray Road and Gordon Crescent with the northern units facing north, the southern units facing south and the central units facing east west. The amended development retains the number of steps and the overall building form and while it is acknowledged that it has changed from a four storey building (although there were parts which were clearly 5 storeys particularly around the gym and storage on level 4) to a part 4 part 5 storey building this is entirely within what is contemplated to be "substantially the same" 23Mr Darroch also noted that the preceding s 96 applications were considered to be "substantially the same" and involved significant changes. Findings 24Ms Duggan SC and Mr Tomasetti SC referred to the relevant decisions of the Court and generally agreed on the approach to determining what is "substantially the same" for the purpose of s 96(2)(a) of the EPA Act. Section 96(2)(a) requires that I be satisfied that the development to which the consent as modified relates (the Application) is substantially the same as the development for which consent was originally granted and before the consent as originally granted was modified (the Original Consent). The finding of satisfaction in s 96(2)(a) is a jurisdictional fact which must be satisfied before an application for modification under s96 can be considered on its merits. 25Consideration of whether the development is substantially the same requires both qualitative and quantitative comparison: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298. The test of whether the development is substantially the same requires assessment of whether the modification "does not radically transform the originally approved development": Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351. The word "substantially" means "essentially or materially having the same essence": Vacik Pty Ltd v Penrith City Council (Land and Environment Court, Stein J, 24 February 1992); North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. 26An understanding of "the development" for which consent was granted (as modified by conditions) and a comparison with the development proposed in the Application is necessary in order to undertake the quantitative and qualitative comparison required to satisfy s96(2)(a). 27The experts provided a summary of the quantitative changes in Table 1 and in the comparison of the Plans in Exhibit 6. The changes are significant in number and in substance. Ms Duggan SC submits that while there are a number of quantitative changes the Original Consent is not radically transformed and it is essentially and materially the same. It remains a single residential flat building above basement car parking, which steps down in response to the topography of the site, with vehicle access from Mowbray Road and pedestrian access from Gordon Crescent. 28I do not accept this submission. In undertaking the qualitative and quantitative comparison required, I find that the Application is substantially (and in essence different) from the Original Consent. The height has increased from a predominantly four storey building to a predominantly five storey building and the excavation has increased significantly both in depth and in proximity to the eastern boundary. Internally the floor levels have changed as well as the internal arrangement and number of units. The lifts have been relocated and increased from two to three. The exterior appearance of the building has changed due to the increased height, and the relocation of windows, doors and balconies. The area of deep soil has been reduced by the reduction in the setback from the eastern boundary and impacted on existing trees. 29The increased number of units and vehicles, as well as the changes to the units mix, result in a different intensity of use. In addition, the different location of the windows, doors and balconies and communal open space, have different amenity impacts for both the occupants of the development and those in adjoining developments. 30The cumulative effect of these change results in a building with a different overall scale, bulk, form, appearance and impacts. In physical terms, while the building remains a single residential building that steps down the site, its envelope, height, setbacks and landscaping are materially different. In particular, while the Original Building was a single building, it was a U shape which formed a courtyard around the significant trees to be retained on site. The courtyard has been reduced by the reduction of building setback and the intrusion of balconies, stairs, basement areas and other structures into this area. This appears to have resulted in the removal of Trees 13 and 14, which were required, by condition, to be retained in the Original Consent. It has also resulted in the relocation of the communal open space from ground level to a terrace level in the building. 31I accept Mr Sanders evidence and the submissions of Mr Tomasetti SC that the development proposed in the Application is not quantitatively or qualitatively the same development as that approved in the Original Consent. The development is "radically transformed" and does retain the essence of the Original Consent. For these reasons, it is not substantially the same development and cannot be approved. 32It is therefore not necessary for me to assess the merits of the Application. However, by way of comment, as this is an application under s 96(8) of the EPA Act I would be required to "take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application". While the Contentions only raise merit considerations in relation to the number of storeys, I have not been provided with an assessment, which demonstrates that the relevant matters under s 79C(1) have been addressed. Orders (1)The appeal is dismissed. (2)The application under s 96(8) of the Environmental Planning and Assessment Act 1979 to modify under s 96(2) the development consent DA10/200 for a residential flat building at 532 - 534 Mowbray Road and 72 - 74 Gordon Crescent, Lane Cove, is refused. (3)The exhibits, except Exhibit 4, may be returned. Annelise Tuor 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. Decision last updated: 31 July 2013