Land and Environment Court New South Wales Medium Neutral Citation: Gregory v Central Coast Council [2016] NSWLEC 1652 Hearing dates: 14 & 15 December 2016 Date of orders: 15 December 2016 Decision date: 15 December 2016 Jurisdiction: Class 1 Before: Brown C Decision: 1. The appeal is dismissed. 2. Application Number DA/1034/2013-A that seeks to modify the development consent granted by the Hunter and Central Coast Joint Regional Planning Panel for a boarding house and manager's residence at 2 - 6 Glen Road, Ourimbah is refused. 3. The exhibits are returned with the exception of exhibit 6. Catchwords: MODIFICATION: delete condition requiring removal of hostel rooms – whether proposed modification substantially the same development as the development for which consent was originally granted Legislation Cited: Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Affordable Rental Housing) 2009 Wyong Local Environmental Plan 2013 Cases Cited: Houlton v Woollahra Municipal Council (1997) 95 LGERA 201 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 Vasic Pty Ltd v Penrith City Council [1992] NSWLEC 8 Category: Principal judgment Parties: Kevin Gregory (Applicant) Central Coast Council (Respondent) Representation: Counsel: Mr A Pickles SC (Applicant) Mr J Connors, barrister (Respondent) Solicitors: Mills Oakley (Applicant) Central Coast Council (Respondent) File Number(s): 2016/149967 Publication restriction: No JUDGMENT 1. COMMISSIONER: This is an appeal against the refusal of Application Number DA/1034/2013‑A, made under s 96(2) of the Environmental Planning and Assessment Act 1979, to modify a development consent granted by the Hunter and Central Coast Joint Regional Planning Panel (the JRPP) for a boarding house and manager's residence at 2 - 6 Glen Road, Ourimbah. The modification application seeks to delete or amend 11 of the conditions of consent however the principal condition in dispute is condition 1 of Sch A which states: 1. The design is to be modified to completely delete the western wing building (as shown marked red on the attached plans) containing a total of 18 boarding house units. The design of the carpark area is to be adjusted to meet the revised number of car parking spaces required for 82 boarding house units plus one manager's residence approved under this determination. The design is to include enhanced landscaping on that part of the site previously occupied by the proposed western wing and car parking area. 1. The effect of the deletion of condition 1 is to reinstate an 18 room western wing building required to be removed by condition 1,thereby providing for a 100 room boarding house development. 2. At the suggestion of the Court, the parties agreed that the threshold question of whether the proposed modification was "substantially the same development as the development for which consent was originally granted" be dealt with as a separate issue and if found to be so, the merits of the modification application could be heard. Alternatively, if the modification was not substantially the same then the application would be refused and the appeal dismissed. The site 1. The site comprises three adjoining lots and is described as Lots 18, 19 and 20 in DP20173. The site is approximately 2,966 sq m in area and contains two existing dwellings and some vegetation including a number of mature tallowwood trees. 2. The site is approximately 40 m to the west of the Pacific Highway and the main northern rail line. The site adjoins Ourimbah Shopping Village that fronts the Pacific Highway. Relevant planning controls 1. The site is within Zone R1 General Residential under Wyong Local Environmental Plan 2013 (LEP 2013). The proposed development is permissible with consent in this zone. The proposed development also relies on State Environmental Planning Policy (Affordable Rental Housing) 2009. Background 1. The background to the approval has some relevance in considering this appeal. The consent was granted by the JRPP on 24 September 2015 for a boarding house and managers residence. As originally submitted, the development application was for a four‑storey boarding house; however, following a design review, the proposed 4 storey development was reduced in length and substantially set back from the Glen Road street frontage with a lesser setback for the third storey. The revised form of the development application was supported by council staff; however, the JRPP indicated that it did not support the fourth storey and invited the applicant to remove it entirely. Consequently, the applicant removed the fourth storey but added a three-level west wing in its place. The JRPP determined the DA by granting a deferred commencement consent and modified the proposed consent conditions to reflect the design suggested by the JRPP. Is the proposed modification substantially the same development as the development for which consent was originally granted? The legal framework 1. Section 96(2)(a)of the EPA Act states: "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)." 1. Section 96 has been described as "beneficial and facultative" in Houlton v Woollahra Municipal Council (1997) 95 LGERA 201 at [213] and North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433 at [440]. Accordingly, the provisions of s 96 should not be artificially constrained by allowing a narrow construction. 2. In Vasic Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J held that "substantially" meant "essentially all material or having the same essence." 3. In Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at [56] Bignold J held that the task for determining whether a development as proposed to be modified is substantially the same as the consent granted was 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)." The submissions 1. Mr Connors, for the council, submits that the development as proposed is not substantially the same development as that for which development consent was granted by the JRPP on 24 September 2015. Using the qualitative and quantitative considerations set out in Moto Projects, Mr Connors states that the quantitative differences are: 1. The development the subject of the consent contains 82 boarding rooms, whereas the development as proposed and modified contains 100 boarding rooms ‑ this being an increase of approximately 23%. 2. The development, as approved, has a building footprint of 958 sq m, whereas the development as proposed has a building footprint of 1,372 square metres ‑ this being an increase of 414 sq m or 43%. 3. The development, as approved, has an approximate total gross floor area of 2,490 sq m, whereas the development as proposed has a total gross floor area of 2,925.5 sq m, which is an increase of 435 sq m or approximately 15%. 4. The development, as approved, has a variable building setback from the western boundary of between approximately 20 metres towards the front of the site to 10 m towards the rear of the site. The development, as proposed, has a building setback of 5 from the western boundary and this provides for a reduction in the setback of between 200% and 100%. 1. Mr Connors identifies the qualitative differences as: 1. The western wing contributes to the bulk of the building to such an extent that the proposal becomes out of scale with the development found in the local area and is not compatible with the existing character of the local area. 2. The increased bulk and extent of the elevation with the reinstatement of the western wing does not provide an adequate transition from the commercial strip to the low density residential neighbourhood. 3. The development, as proposed, has significantly reduced solar access to rooms which face the void created by the primary building and the proposed west wing. 4. Rooms located on the ground floor of the building as proposed will receive no direct sunlight for the period 21 March to 23 September. 5. The addition of the west wing, as proposed to be modified, results in overshadowing of the adjoining residence and a greater extent of overshadowing of the private space of 8 Glen Road. 6. The potential for overlooking of the adjoining property is increased in the development as proposed to be modified. 1. Mr Pickles SC, for the applicant, submits that the council has sought to address the contention by reference to quantitative and qualitative changes but in doing so has in fact undertaken a merit assessment. For example, the fact that there will be additional overshadowing does not mean that the development, as proposed to be modified, is not substantially the same development, it simply means that there will be different impacts which must be assessed under s 96(3) in any event. 2. Whether the development is substantially the same as that which was originally approved is a question of fact and degree depending on the specific circumstances of each matter and is not a question which is capable of scientific or mathematical precision but rather is a judgment based on the overall consideration of the differences, both qualitative and quantitative. 3. Mr Pickles further submits that it is axiomatic that a modification of a development under s 96 may have the effect of rendering the development physically or functionally different in some respect. The real question is whether the difference makes the overall development anything other than substantially the same as that approved. This involves a comparison of the development as approved with the development as proposed to be modified. This must not involve undue focus upon elements of the development that are different but a comparison of the whole. 4. In the circumstances of this case, the development consent was for a three‑storey boarding house comprising 82 rooms with parking at grade. The development, as proposed to be modified, does not alter the fundamental essence of the development; it will still be a boarding house of three storeys but will contain 100 rooms rather than 82 and will still have parking at grade. It remains fundamentally or essentially the same development. None of the qualitative or quantitative differences identified is of the character of change identified in Moto Projects. In that case the access arrangement onto the expressway was a fundamental element of the development which once altered would fundamentally alter the way the whole development operated. Here, while the development as proposed will have some different impacts. None of those impacts, individually or collectively, fundamentally alter the essence of the development. The access arrangement and the vast bulk of the parking arrangements will remain unchanged. The overall height of the building is also unchanged as is the use to which the premise is to be put entirely unchanged. 5. A further distinction should be made between the facts of this case and the facts of the seminal decision in Moto Projects. In that case one of the conditions sought to be modified relating to the vehicular access to the Warringah Freeway was not a design change imposed by the consent authority; rather, the condition in its terms merely required evidence that the RTA had approved the entry from the expressway. In all other aspects the entry formed part of the plans approved by the consent. 6. In this case the position is markedly different from Moto Projects. The conditions which are sought to be modified affected design changes on the application that was before the consent authority. Mr Pickles notes that it would be a curious result to say that it is within power for a consent authority to impose design changes by condition but it is not within power to delete those conditions because the development would not be substantially the same development. For these reasons, Mr Pickles maintains that the proposed modification application is substantially the same development for which consent was originally granted. Findings 1. In considering the different submissions, I prefer the conclusions of Mr Connors. The qualitative and quantitative approach in Moto Projects has been widely used in answering the question of whether a modification is substantially the same as the original approval. While the circumstances in Moto Projects are clearly different to those in this application, the need to consider to qualitative and quantitative changes does not rely on any particular characteristics of the facts in Moto Projects; the test is sufficiently broad to be adaptable in most, if not all circumstances. 2. I am also not satisfied that the submission by Mr Pickles that the power to impose the deferred commencement conditions by the JRPP exists but the power to remove the same deferred commencement conditions does not because it would not be substantially the same development does not diminish or alter the importance of the assessment required by the test set out in Moto Projects. 3. While Mr Pickles is correct in saying that s 96(3) and not s 96(2) requires a merit assessment of a modification, this merit assessment can only occur when an application satisfies substantially the same test in s 96(2). If the s 96 process is to be seen as beneficial and facultative and given a broad rather than narrow focus then I do not see why some consideration should not be given to the impacts of the amendment. In this case matters such as additional overshadowing, in my view, falls squarely within the qualitative assessment required by Moto Projects. 4. I am also mindful that the proposed development gains the opportunity for approval through State Environmental Planning Policy (Affordable Rental Housing) 2009 where cl 30A requires that consent must not be granted unless the development is compatible with the character of the local area. The modification application places a 3-storey building near the Glen Road frontage whereas the original application provided no buildings in this location. If I am incorrect in this, then I readily accept that the qualitative changes, qualitatively and quantitatively, identified in Mr Connors' submission are sufficient to establish that the modification application could not be substantially the same development for which consent was originally approved. 5. I am not satisfied that even while the use of the building has not changed, the modifications are not essentially or materially the same or have the same essence as the original approval. It follows that the appeal is dismissed and that the modification application is refused. Orders 1. The orders of the Court are: 1. The appeal is dismissed. 2. Application Number DA/1034/2013-A that seeks to modify a development consent granted by the Hunter and Central Coast Joint Regional Planning Panel (the JRPP) for a boarding house and manager's residence at 2 - 6 Glen Road, Ourimbah is refused. 3. The exhibits are returned with the exception of exhibit 6. __________ G Brown 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: 25 January 2017