Land and Environment Court New South Wales Medium Neutral Citation: Progress East Pty Ltd v Randwick City Council [2019] NSWLEC 1029 Hearing dates: 4 December and 14 December 2018 Date of orders: 06 February 2019 Decision date: 06 February 2019 Jurisdiction: Class 1 Before: Walsh C Decision: (1) The appeal is upheld. (2) Consent is granted for the modifications sought in respect of development consent DA 266/2015/C for the alterations and additions to the existing residential flat building at 131 Mount Street, Coogee, subject to the schedule of modified conditions set out in Annexure "A" and the consolidated conditions as set out in Annexure "B". (3) The exhibits, other than exhibits A, C, 2, 3 and 4, may be returned. Catchwords: DEVELOPMENT APPLICATION: Modification of development consent; s 4.55(1A) of EPA Act; whether substantially the same development; whether minimal environmental impact; amenity; objections; consent orders Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Limited (No 3) [2015] NSWLEC 75 Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 Texts Cited: Practice Note - Class 1 Development Appeals Randwick Development Control Plan 2013 Category: Principal judgment Parties: Progress East Pty Ltd (Applicant) Randwick City Council (Respondent) Representation: Solicitors: M Jaku, Jaku Legal (Applicant) V McGrath, Norton Rose Fulbright (Respondent) File Number(s): 2018/174588 Publication restriction: No Judgment Introduction 1. This judgment concerns a Class 1 appeal brought by Progress East Pty Ltd under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal is against Randwick City Council's (Council) refusal of an application to modify a development consent. The application is referenced as DA 266/2015/C. DA 266/2015/C was lodged under s 4.55 (1A) of the EPA Act. 2. The application seeks to modify an approved development being a part three and part four storey residential flat building comprising six residential units (3×1 bedroom and 3×2 bedroom) with basement parking and landscaping, at 131 Mount Street, Coogee, also described as Lots 1 to 6 in Strata Plan 96380 (site). The proposed modification involves alterations to the approved residential flat building to reconfigure certain bedrooms, bathrooms and storage areas. 3. There is some background to the application. A residential flat building currently exists on the site. However, the as-built development included some elements which were inconsistent with the original consent. The effect of these inconsistencies was suggested to introduce the potential for additional sleeping rooms within the development. Council's contentions (Exhibit B) originally maintained concerns that the proposal was not "substantially the same development" (a jurisdictional requirement of modification applications generally) as a consequence of the additional capacity for sleeping rooms. 4. Changes to the original appeal plans (Exhibit C) were undertaken in response to this and other contentions raised by the Council. The amended plans, and dialogue in regard to conditions, had reached the point that the contentions has fallen away and agreed consent orders for this matter were prepared by the parties, and proposed to the Court, prior to the commencement of the hearing. 5. The Court's Practice Note - Class 1 Development Appeals provides guidance in regard to agreed consent orders at par [99]: "Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taken into account. Additionally, the consent authority will be required to demonstrate that it has given reasonable notice to all persons who objected to the proposal of the following: (i) the content of the proposed orders (including the proposed conditions of consent); (ii) the date of the hearing by the Court to consider making the proposed consent orders; and (iii) the opportunity for any such person to be heard, or that, in the circumstances of the case, notification is not necessary." 1. In regard to "reasonable notice" of the intention to apply for consent orders, Council provided evidence of its correspondence to objectors dated 20 November 2018. The letter was indicated to include copies of both the draft Order and agreed conditions (Exhibit 3, Tab 75C). The date and location of the hearing was also referenced. Ultimately, no objectors attended the Court to give evidence. Written objections are considered below, after the particulars of the modification proposal are described. The proposal 1. The proposal before the Court, in terms of plans and agreed conditions, involves internal alterations and some provisions in regard to window detailing (principally to reduce risk of privacy impacts). The approved building massing and envelope would remain intact. 2. The changes include: * Basement: Addition of a landscape planter on southern boundary; * Ground floor: Unit 1 – Relocation of bathroom to the northern side of the unit and associated reconfiguration of kitchen. Provision of walk-in-wardrobe (annotated as "WIR" in plans) in former location of bathroom, but also through reducing the size of the bedroom. Unit 2 – Enlarging the approved study from 9.1m2 in area to 12.3m2 (approx.) through reducing the width of one of the bedrooms. Previously the study width was 2.31m; its width would become 3.05m; * First floor: The changes would be in accordance with those for the Ground Floor with Unit 3 changes essentially according with those for Unit 1 and Unit 4 changes essentially according with those for Unit 2; * Second floor: A bathroom would be relocated from the northern side to a more central location within Unit 6 and include a roof skylight. A large WIR (7.32m2 in area) would replace the bathroom and also take up some area freed up from a reconfiguration of the living room; * Third floor: Provision of a landing and door to bedroom. 1. In addition, agreed conditions provide for opaque or obscure glazing, and controlled opening, of windows related to the above changes, where there might otherwise be potential privacy impacts. Jurisdictional preconditions 1. The modification application was made under (now) s 4.55(1A) of the EPA Act. Two preconditions are imposed on the consent authority, or in this case the Court, in regard to the use of this provision to modify a consent. First, the Court must be satisfied that the proposed modification is of minimal environmental impact (s 4.55(1A)(a)). Second, the Court must be satisfied that: the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all) (s 4.55(1A)(b)). Considering s 4.55(1A)(a) – "minimal environmental impact" 1. The adjudication of whether the proposal satisfies this precondition can be assisted by the assessment of the objections raised by neighbours. I turn to the lay objections a little later and return to this precondition in my conclusions. Considering s 4.55(1A)(b) – "substantially the same development" 1. The legal principles applying to the "substantially the same development" test are summarised in Agricultural Equity Investments Pty Ltd v Westlime Pty Limited (No 3) [2015] NSWLEC 75 (Agricultural Equity) per Pepper J at [173]. While the application in Agricultural Equity was in regard to what would now be s 4.55(2)(a) of the EPA Act, they apply equally in regard to s 4.55(1A)(a). 2. It is not necessary to go to each of the ten principles in this matter. The essence of the test, in this instance, might be captured by the final four principles, cited below: "(7) the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); (8) in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); (9) the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and (10) a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52])." 1. The original consent (DA/266/2015 and marked as Exhibit D) was for: "Demolition of the existing dwelling house and construction of a four-storey residential flat building comprising of six dwellings and basement carpark for seven vehicles, associated site and landscape works …" 1. The approved plans were also before the Court (Exhibit E). The modification particulars as provided in the plans at (Exhibit A) and described at par [1] can be readily related to the original approved plans. It is clear to me that the changes do not involve a radical transformation. The development remains a residential flat building involving six "dwellings". There is no change to the building massing. The modifications do not trigger either qualitative, or quantitative, concerns having a mind to contextual issues (here I have had regard to Randwick City Council's Director City Planning Report CP71/15 to the Ordinary Meeting of 8 December 2015 which considered issues raised in regard to the original DA). The question of whether the changes to the internal configurations could result in additional bedrooms was raised above. I would note that it would be likely, all other things being equal, that my conclusion on the "substantially the same development test" would still be passed even if some additional bedrooms were proposed with a modification similar to this. That is not to say a merits test would pass, of course. 2. In summary, I conclude that the development to which the consent, as modified with the subject modification application, relates is substantially the same development as the development for which the consent was originally granted with DA/266/2015. Objections 1. The objections to the proposal raised the following concerns: not substantially the same development, changes would allow additional sleeping areas and thus additional residents, more congestion and unaccounted for parking demand, privacy impacts associated with the internal changes (that is, the window arrangements previously approved were no longer appropriate), as well as noise and lighting concerns. Room configuration – question of additional sleeping areas 1. Concerns were raised by objectors that the changes to room configuration were intended to provide for an increase in the number of residents in the units. That is, these relatively large storage rooms ("WIR") and study areas were capable of being used as bedrooms. 2. The question of "substantially the same development" forms part of the jurisdictional test for this application, which I examined above. But the use of the term here by objectors is more to emphasise this concern about the effect of the internal alterations. 3. This particular concern of the objectors, which was also a matter originally raised as a contention by Council, has been appropriately taken into account in the agreed consent orders. There has been some modification to the proposal subsequent to the lodgement of the Class 1 Application plans which has satisfied Council's own tests in regard to this question of whether the proposal was creating additional sleeping rooms. This has involved changes to room detailing and specific conditions restricting future provision of separate entry doors and additional sleeping rooms. When the consent order plans are viewed, the changes to the room configuration do present as walk in robe and study areas typical to residential dwellings. Parking and congestion 1. The conclusion from consideration of the above issue would find that the modification application would not of itself result in an increase in occupant numbers or parking demands. A memo from Council's Development Engineer dated 7 March 2018 (Exhibit 3, Tab 71) pointed to the relevantly small increased parking demand even if (some) additional bedrooms were created; and the proposal's oversupply of motorbike and cycle parking when compared to Randwick Development Control Plan 2013 (DCP) requirements. No adverse impact in regard to parking and congestion can be assigned to the proposed modifications. Visual privacy 1. Visual privacy concerns were raised from neighbours to both the north and south. From the north and Units 1 and 3, the concern was in regard to the reconfiguration of the kitchen and bathroom in particular, with occupants now looking directly out from the kitchen sink to the north. A condition is imposed for these kitchen windows to be opaque and operable to a maximum of 150mm only. Bathroom windows would also be fully opaque. In addition, the window to the walk in robe of Unit 6 is to be full opaque/obscured glazing and both the upper and lower planes must be fixed and inoperable. 2. From the south, and in regard to Units 2 and 4, where a WIR would replace the previous bathroom, it is noted that there is already a requirement for opaque glazing to the now WIR area. From the south, the window to the WIR in Units 1 and 3 are required to be full opaque/obscured glazing and fixed and inoperable. The other modifications, which are limited to the changes to the study in Units 2 and 4, do not seem to otherwise affect privacy to the south. Other amenity concerns 1. The objections in regard to light spill and acoustic privacy are not, properly, associated with the current modification application. That is, the management of excessive night lighting, or noise from neighbours, would not be reasonably related to the proposed modifications to internal room configurations. Conclusion on lay objections 1. Having regard to the Court's Practice Note - Class 1 Development Appeals, it can be concluded that objections have been properly taken into account in the proposed consent orders. Conclusions on jurisdictional questions 1. I have already confirmed the development as substantially the same as original approved. 2. Having considered the concerns of neighbours, I am now better placed to consider whether the modification would have minimal environmental impact. The concern of the Court here is in regard to the modifications to the original consent as proposed. The changes are modest of themselves from a plain comparison of the approved plan and proposed modifications. I am not convinced that the modifications would themselves bring any change to the already approved plans which would have anything other than minimal environmental effect. Conclusion 1. The parties have filed consent orders and agreed conditions of consent (Annexures A and B). They invited me to make orders granting consent to the modifications sought subject to the agreed conditions of consent. Despite the agreed position of the parties, I am required to carry out an assessment under ss 4.55(1A) and 4.55(3) of the EPA Act in order to determine if it is lawful and appropriate to grant consent. I am also required to consider the evidence and submissions of the objectors. 2. In regard to jurisdiction and consideration this matter as an application under s 4.55(1A) of the EPA Act, I have found in the affirmative in regard to the questions of whether I was satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted. I can also now conclude: based on the analysis of the issues raised by objectors above, and mindful the site view held on 14 December 2018, and having regard to Dravin Pty Ltd v Blacktown City Council [2017] NSWLEC 38 at [57]; that the proposed modification is of minimal environmental impact. I have found no other jurisdictional impediment in the circumstances, and so find there is a lawful capacity to approve the modification application. 3. In regard to the agreed consent orders submission of the parties, I have found that reasonable notice has been given to objectors of the agreed orders and the opportunity for parties to be heard; and that documented objections have been properly taken into account. 4. With a mind to the agreed consent orders prepared by the parties and the associated evidence, as well as s 4.55(3) of the EPA Act (including the reasons given by the consent authority for the grant of the original consent), and considering the provisions of s 4.15(1) of the EPA Act directly; I find it appropriate to grant consent to the modifications, mindful of the proposed conditions. 5. The orders of the Court are: 1. The appeal is upheld. 2. Consent is granted for the modifications sought in respect of development consent DA 266/2015/C for the alterations and additions to the existing residential flat building at 131 Mount Street, Coogee, subject to the schedule of modified conditions set out in Annexure "A" and the consolidated conditions as set out in Annexure "B". 3. The exhibits, other than exhibits A, C, 2, 3 and 4, may be returned. ………………………… P Walsh Commissioner of the Court Annexure A Annexure B ******** 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: 06 February 2019