Land and Environment Court New South Wales Medium Neutral Citation: Pozzobon v City of Canada Bay Council [2014] NSWLEC 1143 Hearing dates: 10, 11 July 2014 Decision date: 22 July 2014 Jurisdiction: Class 1 Before: Dixon C Decision: Appeal dismissed Catchwords: DEVELOPMENT MODIFICATION - Deletion of conditions of development consent-Substantially the same development Legislation Cited: Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Cases Cited: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [51] 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 Sydney City Council v llenace Pty Ltd (1984) 3 NSWLR 414 at [421] Tipalea Watson Pty Ltd v Ku-ring-gai Council (2003) 129 LGERA 351 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Category: Principal judgment Parties: Adelino Pozzobon (Applicant) City of Canada Bay Council (Respondent) Representation: Mr S Berveling (Applicant) Mr P Jackson (solicitor) (Respondent) Mills Oakley Lawyers (Applicant) Pikes & Verekers Lawyers (Respondent) File Number(s): 10275 of 2014 Judgment 1This is an appeal under s97AA of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal of an application to modify a development consent (DA100/2012/1) granted by the respondent Council on 16 December 2013 (the consent). 2The consent relates to land at 64 Burns Crescent Chiswick (the site) and approves the demolition of existing structures on the site, its subdivision into two separate allotments and the construction of a new dwelling on each allotment. 3The grant of consent is conditional. It requires the amendment of the approved plans prior to the release of the construction certificate. The amendments are specified in conditions 18 and 23. 4Condition 18 provides: 18 CCG1 Amendments to Approved Plans The following amendments shall be made to the approved plans prior to the issue of a Construction Certificate: (a) Reduce overall building height of the front dwelling by 1100mm. (b) Reduce overall building height of the rear dwelling by 1100mm. (c) Increase the front dwelling's south/western side setback to basement, ground and first floor levels an additional 1195mm, to a total side setback of 2700mm. (d) Increase the rear dwelling's south/western side setback to basement, ground and first floor levels an additional 1195mm, to a total side setback to 2700mm. Further to this, the section of the south/western wall, the width of the bathrooms, shall be set back an additional 270mm in order to articulate the 10.67m long masonry wall along that boundary. These setback adjustments must be in combination with a reduction of gross floor area of a minimum 5m2. (e) Reduce the depth of the front dwelling's patio to a maximum of 3.4 metres measured from the external face of the dwelling to the outside face of the balustrade. The roof line over this patio shall also be cutback (sic) to accord with the required maximum depth of 3.4 metres. (f) The proposed first floor balcony to the rear elevation of the dwelling on the proposed rear Lot 2 shall be deleted and the doorway to this balcony shall also be deleted. (g) The garage for the rear dwelling on proposed Lot 2 shall be setback 1.6 metres from the side boundary with No. 10 Hezlet Street so as to align with the ground and first floor wall setback for this rear dwelling. The deep soil area created by this increased setback shall be landscaped with appropriate shrubs from Council's Native Plans within the City of Canada Bay list as published on Council's web page. These details shall be included in an amended landscape plan to be submitted with the Construction Certificate to the Accredited Certifier. 5Condition 23 provides: 23 CCP4 Window Sill Heights for Privacy Minimum 1200mm sill heights shall be provided to all first floor level windows to the rear elevation of the rear dwelling on proposed Lot 2. In addition, the kitchen window on the north-east (side) elevation shall be installed with a fixed obscure glazed lower pane to a minimum sill height of 1500mm. The proposed horizontal aluminium privacy screen to this window shall be deleted from the proposed dwelling design. The changes in this regard shall be reflected as amended plans to be submitted to the Accredited Certifier prior to the issue of a Construction Certificate for the proposed development. The modifications 6The applicant seeks approval under s96 (2) of the Act to modify the consent to delete conditions 18 and 23 and the approval of two letterboxes and obscure glazing in the bathroom windows. 7The Council opposes the modifications sought on the basis that the Court lacks jurisdiction. It contends, on the evidence of its Senior Statutory Planner, Mr Giaprakas, that conditions 18 and 23 are integral to the consent and that their deletion will result in a development which is not substantially the same as the development for which consent was originally granted: s96 (2)(a) of the Act. . Section 34AA Process 8This application concerns a category of development that falls within s34AA of the Land and Environment Court Act 1979 (LEC Act). For that reason at the outset I conducted a conciliation conference between the parties and the objectors to the application were invited to participate. 9The objectors include: Mrs Pavis of 5 Eaton Place, Chiswick; Mr Moiso of 8 Hezlet Street, Chiswick; Mr Edgar of 10 Hezlet Street, Chiswick; Mr and Mrs Iacono of 4 Eaton Place, Chiswick. 10During the conference I took a view of the site. I also inspected the properties owned by the objectors and at that time they explained their concerns with this application. 11The objectors collectively expressed a concern about any increase in height of the dwellings to that approved by the consent because of the impact on their remaining views and amenity. They were particularly concerned about the bulk and size of the development given the close proximity of their common boundaries in this peculiar subdivision pattern. They asked the Court to require the applicant to comply with the setbacks imposed by the conditions of consent in order to protect their privacy and to provide reasonable separation from the development. 12While the objectors accepted (albeit reluctantly) the fact of the development, they told me that their remaining amenity and views were dependant upon the amendments imposed by the conditions. They spoke specifically about the conditions of consent requiring a reduction in height of each dwellings by 1100mm and, a setting back of the rear dwelling by 2.7mm at the ground level and first floor level and an extra articulation in the distance of the 10.67m side masonry wall at first floor level by 275mm (which under the condition necessitates a redesign of the floor plan to achieve a 5% reduction of FSR). 13As the conciliation conference did not achieve any agreement between the parties, it was terminated and I proceeded to hear the matter forthwith. It was agreed that the matters discussed and observations made during the conciliation conference could be evidence in the hearing. 14At the hearing the applicant tendered a "fallback position" in the event that the Court was against its primary position (Exhibit E). The fallback position proposed a lowering of the rear dwelling by 150mm and the front dwelling by 500mm and some alternate changes to the balconies. The Council rejected the applicant's fallback position. Contentions 15The Council's statement of facts and contentions in reply (Exhibit 1) does not raise jurisdiction as a specific contention in these proceedings. However, the evidence of the Council's planner, Mr Giaprakas does. Therefore, based on his evidence the Council submits that the application should be dismissed because the Court cannot be satisfied as required by cl 96(2)(a) of the Act. 16The applicant takes the opposite view. However, before I delve into the jurisdictional issue and the evidence it is appropriate to give some context to the development. I have taken that detail from the applicant's statement of facts and contentions (Exhibit A) and the Council's planning assessment report. Site and Locality 17The site has an area of approximately 927.4m2, and is generally rectangular in shape with a splayed frontage of 18.59m. The north-east boundary is 50.04m in length and the south-west boundary is 56.615m in length. 18Surrounding properties consist predominantly of detached single dwelling houses with a variety of architectural styles and an inconsistent subdivision pattern. The area is generally dominated by 1960s/1970s architecture with emerging contemporary style development. 19Most of the dwellings on the same side of Burns Crescent present are 3-storey structures, largely due to the steep slope of the land. This site has a significant fall from its rear boundary to the front boundary of over 8.2m. It is also deeper than most in Burns Crescent therefore adjoins the boundaries of several properties in Eaton Place and Hazlet Street. 20The site's interrelationship with its neighbours (most of whom, object to this application) is best understood from the location plan reproduced below. It is taken from the Council's assessment report (at folio110 Exhibit 7). The site is bordered by shading and marked 64. Zoning 21The site is zoned R2 Low Density Residential pursuant to Canada Bay Local Environmental Plan 2013 ("the LEP"). 22The Land Use Table in the LEP contains the objectives for the R2 zone, as follows: * To provide for the housing needs of the community within a low density residential environment. * To enable other land uses that provide facilities or services to meet the day to day needs of residents. 23Subdivision of the site is permissible with consent - cl. 2.6 of the LEP. Dwelling Houses are permissible with consent - see Land Use Table of the LEP. 24The LEP contains development standards for, relevantly: (a)Minimum Lot Size cl. 4.1; (b)Height of Buildings cl. 4.3; (c)Floor Space Ratio cl. 4.4. 25The dwellings proposed pursuant to the consent comply with the above development standards. Development Control Plan 26The Respondent's City of Canada Bay Development Control Plan (the DCP) applies to the site. 27Relevantly, the DCP contains controls regarding setbacks. The dwellings proposed pursuant to the consent comply with the setback controls without the increase in setbacks required pursuant to condition 18. 28The DCP contains a control regarding the building height plane, with which the proposed dwellings do not fully comply without the reduction of their height required pursuant to condition 18. Actions of the Respondent 29In relation to the Development Application: (a)The development application was notified for 14 days from 28 March 2012. Four submissions objecting to the proposal including one petition with signatures from five households were received. (b)The Respondent required that the applicant amend the plans to address identified view impacts. Amended Plans were lodged with the Respondent on 15 April 2013. The amended plans were notified for 14 days from 18 April 2013, and the Respondent received six submissions objecting to the proposal. (c)An Assessment Report was prepared for consideration by the Council at its meeting 15 October 2013 at which it resolved "That this item be deferred for a site inspection". (d)A site inspection was scheduled for Monday 4 November 2013. (e)A Further Assessment Report was prepared for consideration by the Council at its meeting on 26 November 2013, at which it resolved to grant consent to the development application subject to conditions requiring amongst other things amendment of the plan to reduce its height and setback. 30The application for modification was lodged on or about 31 January. Planning evidence 31The Council's Senior Statutory Planner, Mr Giaprakas, is the council officer responsible for undertaking the merit assessment of the application and he is the author of the planning assessment report and the conditions at issue in this appeal. 32In recommending an approval of the development application Mr Giaprakas told the Court that he required the amendments to the approved plans in accord with conditions 18 and 23. He described the amendments to the approved plans as "integral to the consent" and the development's appropriateness for the site. In fact he said if the conditions the subject of this application were deleted from the consent then in his assessment the development would be qualitatively different to that which he recommended for approval and was ultimately approved by the Council. Therefore, it would not be substantially the same. 33Throughout the assessment report prepared by Mr Giaprakas there are references to the specific site constraints that dictated the design approved by the Council's consent. While the report accepts that the design of the proposed dwellings minimises likely impacts on surrounding properties by utilising lower roof pitch, FSR compliance and siting buildings to ensure reasonable view sharing is maintained, nevertheless it recommends conditions to lower the overall building heights by 1100mm and to increase the site boundary setbacks "to minimise any likely impact of subdivision and development on the amenity of the neighbouring properties" in order to achieve objective (b) of cl 4.1 Minimum subdivision lot size (folio 139 (Exhibit 7)). 34In assessing the original application against the relevant statutory controls at that time Mr Giaprakas accepts that numerically the development achieves full compliance. However, when assessing the development against the objectives of the controls, for example objective (c) of cl4.1 of the LEP 2008, his evidence is that the proposed lot sizes and dimensions are only able to accommodate development consistent with relevant development controls on this site "subject to compliance with the recommended conditions". In his assessment the development is only acceptable on its merits subject to the conditions requiring a reduction in the height of the proposal and a greater setback to ensue its appropriateness for the site and the other changes in conditions 18 and 23 (folio 139 (Exhibit 7)). 35The development approved by the consent created two Torrens title allotments and approved the construction of a two-story dwelling on each allotment. The approved plan is subject to the conditions of the consent. Proposed Lot 1 will have an area of 450m2 and Proposed Lot 2 will have an area of 476.6m2 the setbacks of the building are detailed in the amendments to the plans as provided in the conditions of consent. 36Mr Giaprakas' recommendation in the planning assessment report approves a development subject to "site specific considerations". The recommendation states: THAT Council, as the determining authority, grant consent to Development Application No 100/2012 to demolition of existing dwelling, subdivision onto two separate lots and construction of a new dwelling on each lot on land at 64 Burns Crescent, Chiswick subject to the following site specific considerations. In granting consent Council has regard to the merit considerations carried out in the assessment report and pursuant to s79C of the Environmental Planning and Assessment Act 1979. (my emphasis) 37The site-specific considerations were incorporated as conditions 18 and 23 of the consent. 38According to Mr Giaprakas the height and setback of the development needed to be "shrunk" in order to protect impacts on views and privacy of the adjoining properties. 39The assessment report considers at length the development's impacts on the views and privacy of adjoining properties, most of whose owners object to this application (folio 128 -137 of (Exhibit 7)). In response to every objectors' concern about views Mr Giaprakas recommends in his assessment report: "Conditions of consent to lower each dwelling further by 1100mm and to increase the setbacks have been included in the Recommendation" only then does he conclude "The view sharing that will result from the amended design as further conditioned is considered adequate" (folio 129 (Exhibit 7)). 40With respect to the patio at the rear of the front dwelling and, in response to submissions from the objector at 5 Eaton Place, the planning assessment report states "Patio is considered excessive and has the capacity for overlooking into several propertries. A condition is recommended to reduce the depth of the patio and cut back the roof over the patio to a maximum of 3.4m"(folio 133 (Exhibit 7)). With respect to the articulation of the masonry wall on the rear dwelling and to address its proximity to the boundary with 4 Eaton Place the planning report states that although the side setback complies with the 1.55m control in the DCP "...it is considered reasonable to increase the south western side setback to ground and first floor levels a further 1195mm, from 1505mm to 2700mm. This will not compromise the amenity of the proposed rear dwelling and the additional setback can be absorbed within the oversized study, bedrooms and stairwell. Further to this the section of the south western wall equal to the widths of the bathrooms shall be set back an extra 270mm in order to articular this 10.67 long masonry wall "(folio 135 (Exhibit 7)). 41The site-specific considerations incorporated into the consent by way of condition 18 and 23 clearly attempt to share the views available from the properties adjoining the site in Eaton Crescent. Their views range from iconic views of the upper part of the Harbour Bridge and the central part of the CBD, North Sydney skyline, the land/water interface of Five Dock, Gladesville Bridge and Taplin Park. The amendments required by the conditions also attempt to reduce the bulk and scale of the development given its proximity and impacts on adjoining properties. Conclusion 42Section 96(2) of the Act requires that the consent authority be 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; that relevant Ministers or public authorities be consulted; that the application is properly notified; and that any submissions made are considered. 43I am not satisfied on the evidence before me that after a qualitative and quantitative comparison as required by the authorities that the development is substantially the same as that for which the consent was originally granted (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). 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. 44In Moto Projects (No. 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280, Bignold J states (at 309 [56]): The comparative task does not merely involve a comparison of the physical features or 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 developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 45In the circumstances in which the development consent was granted I must assess whether the modifications proposed alter the approved development without radical transformation (Sydney City Council v llenace Pty Ltd (1984) 3 NSWLR 414 (at 421)). While a modified development can create some changes in the external appearance of the approved development such changes should not create more than "modifications" to the originally approved development (Tipalea Watson v Ku-ring-gai [2003] NSWLEC 253). 46After a consideration of the consent and the circumstances in which the development consent was granted including the planning assessment report prepared by Mr Giaprakas and his oral evidence "...that the deletion of conditions 18 and 23 would not result in a development that is qualitatively substantially the same as the development for which consent was originally granted" I do not believe that I have power to deal with this application. I am not satisfied as required by s96 (2)(a) that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. 47I do not accept the applicant's planner, Mr Mead's view that the conditions can be deleted without radical transformation of the originally approved development. 48Based on the evidence before me the approved development encompasses the amendments required by conditions 18 and 23 of the consent. They are part of the design and ultimately the consent. The conditions cannot as the applicant submits be unnecessary and excessive in circumstances where they were imposed after a merit assessment to make the development acceptable on the site. 49In this case they are not substantially the same and I have no power to make the compendious modifications sought. Accordingly, I order that the appeal is dismissed. Susan Dixon Commissioner of the Court Amendments 31 July 2014 - Decision date changed to 22/7/14 Amended paragraphs: Coversheet 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 2014