Land and Environment Court New South Wales Medium Neutral Citation: Vigor Master Pty Ltd v Hornsby Shire Council [2019] NSWLEC 1110 Hearing dates: 22 – 23 January 2019 and 20 February 2019 Date of orders: 21 March 2019 Decision date: 21 March 2019 Jurisdiction: Class 1 Before: Smithson C Decision: The Court orders that: (1) In terms of Modification Application DA/543/2012/D for the construction of affordable rental housing containing two dwellings at Lots 16 and 17 in DP 2706309, being 6A and 6 Maroota Way, Beecroft respectively; (a) Leave is granted for the applicants to amend the application in accordance with condition 1 of the revised conditions of consent at Annexure "A". (b) The appeal is upheld subject to the conditions in Annexure "A". (2) In terms of building certificate application number BC/15/2017 for dwellings at Lots 16 and 17 in DP 2706309, being 6A and 6 Maroota Way, Beecroft respectively; (a) Leave is granted for the applicants to amend the application in accordance with revised plans 6M0119 – B000, B103, B104, B105, B106, B202, B203, B204, B205, B206, D000, D103, D104, D105, D202, D203, D204 and D205, all Revision 2 and dated 01/02/2019, with associated schedule of works. (b) The appeal is upheld. (c) Hornsby Shire Council is directed, pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, to issue a building information certificate in respect of the dwellings at 6 and 6A Maroota Way, Beecroft upon the satisfaction of the Council that the conditions in Annexure "B" have been met within 180 days of these orders. (3) In relation to both appeals, the exhibits are returned other than Exhibits A, B, 1 and 6. Catchwords: APPEALS: approved affordable rental housing dwellings – unauthorised works to dwellings sought to be regularised – modification application to amend existing consent to retain some unauthorised works – approved use now prohibited but has existing use rights – whether modifications result in substantially the same development – whether compatible with character of local area – compliance with the National Construction Code – capacity to be used as additional dwellings – amenity impacts – building information certificate to issue to reflect approved modification – neighbour objections Legislation Cited: Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment Act 2017 Environmental Planning and Assessment Regulation 2000 Hornsby Local Environmental Plan 2013 Hornsby Shire Local Environmental Plan 1994 State Environmental Planning Policy (Affordable Rental Housing) 2009 Texts Cited: Building Code of Australia Hornsby Development Control Plan 2014 National Construction Code Category: Principal judgment Parties: Vigor Master Pty Ltd (First Applicant) Zhen Zi (Second Applicant) Ke Li (Third Applicant) Hornsby Shire Council (Respondent) Representation: Counsel: J Doyle (Applicants) H Irish (Respondent) Solicitors: Vigor Master (Applicants) Local Government Legal (Respondent) File Number(s): 2018/43723; 2018/300885 Publication restriction: No Judgment 1. COMMISSIONER: These proceedings concern two appeals lodged by Vigor Master Pty Ltd (Vigor Master), subsequently also appointed, with the leave of the Court, as the agent of Zhen Xi and Ke Li; the three parties collectively comprising the applicants. 2. The first appeal was lodged pursuant to then s 149F, now s 8.25, of the Environmental Planning and Assessment Act 1979 (the EPA Act); and the second under s 8.9 of the EPA Act. The appeals were against the refusal by the Hornsby Shire Council (the Council) of Building Certificate Application BC/15/2017 (the BC application) in August 2017 and, subsequently, of Modification Application DA/543/2012/D in September 2018 (the modification application). 3. The second and third applicants are the owners respectively of two semi-detached dwellings known as 6 (No. 6) and 6A (No. 6A) Maroota Way, Beecroft (the site). The dwellings were built by the first applicant, Vigor Master, following granting of consent to an application for their development as affordable rental dwellings pursuant to the provisions of State Environmental Planning Policy (Affordable Rental Housing) 2009 (the ARH SEPP). 4. The approved eastern dwelling (No. 6), as modified by consent, comprised 4 bedrooms, a tandem garage with 2 parking spaces and a floor area of some 204m². The approved western dwelling (No. 6A) comprised 3 bedrooms, a single space garage and a floor area of some 211m². As a condition of consent, No. 6 was required to be used for affordable rental housing for 10 years from the date of issue of the occupation certificate for the development. 5. During construction of the dwellings, Vigor Master undertook works not in accordance either with the consent or with approved modifications to that consent (the unauthorised works). 6. Some of these works, including additional floor space at the lower ground floors, were approved following construction, with Vigor Master obtaining consent for various modification applications and building certificate applications. However, the issued consents did not allow the additional lower ground floor areas to be used for habitable purposes, but only as storage. 7. A Council officer's delegated report refusing the modification application states that Vigor Master "has a history of unauthorised building works which establishes precedent for further unauthorised works" (Exhibit 2, folio 473). 8. The appeals the subject of the proceedings concerned whether a building certificate, now known as a building information certificate, should be issued for some or all of the remaining unauthorised works and consent granted to a modification application seeking to alter the consent to reflect the unauthorised works. 9. A Statement of Facts and Contentions (SFC) was filed with the Council in response to the modification application appeal (Exhibit 6). Vigor Master also filed a SFC in Reply and a SFC in terms of the BC application. The Council filed a SFC in Reply to the BC application (Exhibit 1). 10. Mr Doyle, counsel for the applicants, advised the Court that Vigor Master did not rely on their filed SFC or SFC in Reply and these documents were accordingly not tendered in the proceedings. Therefore the contentions raised by the applicants in these documents were also not raised in the proceedings. 11. However, during proceedings, Vigor Master did contend that some of the works claimed by the Council to be unauthorised had in fact been the subject of building certificate or modification application consents or were implicitly accepted by the Council as they were works shown as existing works on plans which were the subject of such applications. 12. In any event, it was agreed by the parties that any modification application consent or issuing of a building certificate arising from determination of the appeals should confirm all of the approved works existing or proposed to both dwellings. It was also agreed that evidence in one appeal could be considered evidence in the other. 13. The unauthorised works were described by the Council in some detail but, in summary, comprised, for both dwellings: the removal of existing plaster walls to enable internal access into the roof space at first floor level; framing and cladding of new walls in the roofed areas; new windows and opening of external walls at this level; new external doors in the side elevations and new adjoining external stairs; the replacement of the ceiling area on the ground floor with cathedral ceilings and skylights (which the Council argued resulted in an increase in height from 2 to 3 storeys); removal of a bedroom and associated walls on the ground floor to create an open lounge/dining area and kitchen; an increase in roof height at the eastern, western and southern elevations; and changes to stormwater, landscaping and fencing works. 14. In addition, the Council indicated that the following modifications were specifically undertaken to the dwelling at No. 6: * installation of two additional rooms (at least one of which is to be used as a bedroom) within the roofed area with new wardrobes installed; * treatment to the front facade and finishes applied to the entire dwelling. 1. In addition, the Council indicated that the following modifications were specifically undertaken to the dwelling at No. 6A: * installation of a bathroom and an additional bedroom within the roofed area with new wardrobes installed; * installation of a laundry on the ground floor; * installation of an ensuite adjoining one of the rooms designated, and required to be used for, 'storage' on the lower ground floor; and * concreting over and sealing of the existing driveway. 1. The modification application was notified by the Council and 9 objections were received from surrounding residents. In Exhibit 6, it was stated that concerns were raised generally as follows: * The proposed (existing) development was not substantially the same as the development that the Council had approved; * The unauthorised building works increased the building height including adding a third floor; * Privacy impacts arose from the additional first floor windows and from the unauthorised side access (new side doors and stairs); * With up to 14 bedrooms (as a result of the unauthorised works), the development had the potential to be used as a boarding house; * The development was not consistent with the residential character of the area; * There is insufficient car parking for the accommodation proposed (existing); and * The unauthorised works detract from the residential amenity of the area. The site and surrounds 1. The site is situated on the southern side of Maroota Way. Maroota Way is a private road, the construction of which occurred as part of a Community title subdivision, along with the creation of adjoining lots, undertaken by Vigor Master in 2015, being the development of surplus land previously belonging to the adjacent Mount Saint Benedict Convent School. 2. The lots in Maroota Way have all been developed and contain new substantial single residential dwellings, predominantly of at least 2 storeys. Surrounding development is also primarily residential of substantial bulk and scale. 3. The site originally comprised one lot but was subsequently subdivided into two once the dwellings were constructed (the new Lot 16 containing No. 6A and the new Lot 17 containing No. 6). Each dwelling is therefore now contained on its own lot and is in separate ownership. Statutory provisions regarding building certificates 1. The BC application was lodged with the Council under then s 149B of the EPA Act. Following the commencement of the Environmental Planning and Assessment Amendment Act 2017 on 1 March 2018, the provisions of s 149B were relocated to Division 6.7 of the EPA Act. As a result of the amendments, the certificate that the applicants now seek to be issued is a building information certificate. 2. Section 8.25(3) of the EPA Act sets out the powers of the Court on building information certificate appeals as follows: (3) On hearing the appeal, the Court may do any one or more of the following: (a) direct the council to issue a building information certificate in such terms and on such conditions as the Court thinks fit, (b) revoke, alter or confirm a notice to supply information, (c) make any other order that it considers appropriate. Statutory provisions and details regarding the modification application 1. The modification application encompasses both dwellings and was lodged pursuant to the provisions at s 4.55(2) of the EPA Act. It followed a series of such applications, three of which had been approved and one refused. 2. Section 4.55(2) is as follows: (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 4.8) 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… 1. The following provisions at s 4.55 Modifications of consents – generally are also relevant noting that s 4.15(1) contains matters for evaluation by a consent authority in assessing applications: (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 4.15 (1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified. (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. 1. The application sought approval of the unauthorised works through modification of the previous consent issued for the site as an affordable housing development. 2. In this regard, the development was approved under the provisions of Division 1 (In-fill Affordable Housing) of the ARH SEPP with No. 6 being required to be used for 10 years as affordable rental housing; cl 17. Division 1 also contains provisions related to design considerations including in terms of permissible floor space ratio (FSR) at cl 13. At cl 16A, consent can also not be granted unless the consent authority has taken into consideration whether the design of the development is compatible with the character of the local area. 3. The site is zoned R2 Low Density Residential under the provisions of the Hornsby Local Environmental Plan 2013 (the LEP), being the current LEP. At the time the original consent was granted in 2013, the site was zoned Special Uses A (Community Purposes) under the then Hornsby Shire Local Environmental Plan 1994 (the 1994 LEP). The development was approved as multi-unit housing under the 1994 LEP. 4. Upon the commencement of the current LEP in January 2014, the site was rezoned to R2. Within the R2 zone, multi-unit housing and attached dual occupancies are prohibited uses. Therefore, the development now lawfully exists as an existing use as defined in Division 4.11, s 4.65, of the EPA Act. The requirement for consent for changes to existing uses is dealt with at Part 5 of the Environmental Planning and Assessment Regulation 2000 (the Regulations). Relevant extracts follow: 41 Certain development allowed (cf clause 39 of EP&A Regulation 1994) (1) An existing use may, subject to this Division: (a) be enlarged, expanded or intensified, or (b) be altered or extended, or (c) be rebuilt, or (d) be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act, or … 42 Development consent required for enlargement, expansion and intensification of existing uses (cf clause 40 of EP&A Regulation 1994) (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use and for no other use, and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 43 Development consent required for alteration or extension of buildings and works (cf clause 41 of EP&A Regulation 1994) (1) Development consent is required for any alteration or extension of a building or work used for an existing use. (2) The alteration or extension: (a) must be for the existing use of the building or work and for no other use, and (b) must be erected or carried out only on the land on which the building or work was erected or carried out immediately before the relevant date. … 45 Development consent required for changes of existing uses (cf clause 43 of EP&A Regulation 1994) Development consent is required: (a) for any change of an existing use to another use, and … 46 Uses may be changed at the same time as they are altered, extended, enlarged or rebuilt (cf clause 44 of EP&A Regulation 1994) Nothing in this Part prevents the granting of a development consent referred to in clause 42, 43 or 44 at the same time as the granting of a development consent referred to in clause 45. 1. The concern of the Council was twofold. The first was whether, as an existing use, the requirement for consent meant a separate development application was required or consent could instead be issued for the modification application lodged. The second concern, by inference, was whether there was a change in use (arising from having more dwellings) or an intensification of the use. 2. As an alternative to this argument, the Council stated that the modification of the development consent as proposed would result in a development which was not 'substantially the same' as the development originally approved having regard to the requirements of s 4.55(2)(a) of the EPA Act. If this was the case, consent could not be issued. 3. Development on the site is also subject to the provisions of the Hornsby Development Control Plan 2014 (the DCP) and the Building Code of Australia (BCA) operating under the provisions of the National Construction Code (NCC). The Council Contentions 1. The contentions raised by the Council in both appeals were similar, varying only in terms of the required statutory pre-conditions to the granting of consent to the modification application or to the issuing of a building information certificate. 2. In terms of the applications, the Council raised the following contentions: 1. The development is an existing use as defined under s 4.65 of the EPA Act. Development consent is required for any alteration or extension (or change) of an existing use. 2. As an alternative to (1) or in considering (1), the proposed works would result in a development which is not substantially the same as the development that was originally approved by the Council. 3. The proposal would not comply with cl 16A of the ARH SEPP in that the unauthorised works result in a development that is not compatible with the character of the local area. 4. The proposed development does not meet the requirements of the NCC. 1. In terms of the first contention, the issue raised was whether or not the development required a separate development application, as an existing use, rather than comprising a modification application being a modification to an approved development. However, the Council accepted that under either option, consent is required and ultimately this was not a contention pressed providing the existing use provisions of the EPA Act and Regulations for the granting of consent to alter an existing use were satisfied. 2. In terms of the second contention, the Council referenced s 4.55(2)(a) of the EPA Act whereby a quantitative and qualitative assessment of the proposal is required in order to determine if what is proposed is substantially the same as the development approved. 3. In terms of a quantitative assessment, the proposal would increase the floor area of No. 6A from 277.4m2 to 318.4m2 (15%) and No. 6 from 245.3m2 to 286.6m2 (17%). Further, the building height would increase from 8m to 8.5m and from 2 to 3 storeys. 4. It was also contended that the altering of the eastern and western elevations and the roof at the southern elevation created an additional area of some 143m2. Internal changes included new cathedral ceiling with skylights in both dwellings as well as additional windows, rooms, kitchens and ensuites. 5. The Council also raised concerns that several rooms on the lower ground floors were being used for habitable purposes. This was contrary to consent conditions that these rooms only be used for storage. 6. Qualitatively, the proposal includes separate pedestrian access to the lower ground floor. Collectively, the proposed modifications facilitate the separate occupation of the lower ground floor of both dwellings and change the built form and building classification from semi-detached dwellings to a residential flat building (RFB). Specifically, the proposal includes new external doorways at the lower ground floor of each dwelling. These doorways are separately accessed from the street by paths/steps along the side boundaries. The Council contended that the doorways would enable the use of the lower ground floor areas of each dwelling as a separate domicile with independent pedestrian access. Further, the use of the lower ground floor areas for separate dwellings would result in a change in built form and prevent access to ground level open space as approved. 7. Specifically, separate occupation of the lower ground floors of both dwellings would change the NCC classification from Class 1a Dwellings to a Class 2 Building being a RFB with 4 dwellings. Any change in classification results in the following non-compliances with the NCC: 1. The external doors and windows do not comply with the 'Protection of openings' requirements and 'Compartmentation and separation' requirements outlined in Parts C2 and C3. 2. Access to the lower ground floors does not comply with the 'Access for people with a disability' requirements outlined in Part D3. 3. The dwellings would not comply with the smoke alarm requirements outlined in Part E2 and specification E2.2a. 4. The lower ground floors do not comply with the 'Sanitary and other facilities' requirements outlined in Part F2. 5. The separating wall between the proposed occupancies does not comply with NCC requirements as it is incomplete. 6. Bedrooms on the first floors of both dwellings do not comply with the 'Light and ventilation' requirements outlined in Part F4. 1. Furthermore, RFBs are prohibited on the site under the LEP albeit the use and built form of the existing semi-detached dwellings is also now prohibited. 2. In terms of the ARH SEPP, the Council contended that the SEPP (at cl 13) permits a maximum FSR of 0.97:1. The proposal would increase the floor area, and therefore FSR, of both dwellings. 3. This would impact on the character of the local area having regard to the required consideration of this character under cl 16A of the ARH SEPP. The local area was characterised by single and 2 storey dwelling houses with large rear yards. The built form of the approved semi-detached 2 storey dwellings is generally consistent with the characteristic built forms of the area with dwellings oriented to the street and the rear yards. However, the proposal as constructed is 3 storeys which is inconsistent with the local area character. 4. In terms of parking, dwellings with 3 or more bedrooms require 1.5 car parking spaces. No. 6 Maroota Way with only 1 car parking space does not comply with the standard, notwithstanding the Council acknowledged that approval was granted to increase the size of No. 6 from 3 to 4 bedrooms in granting consent to modification application DA/543/2012/B. 5. In summary, Ms Irish, counsel for the Council, advised of the Council's main concern that the additional constructed floor space on the lower ground floor of both dwellings, which was only approved to be used for storage, was being used and would continue to be used as bedrooms, and given the existence of separate kitchen and toilet facilities, as well as unauthorised separate access, the lower ground floors would be separately occupied. Consequently, substantially more occupants would live on site than were contemplated or for which the dwellings were designed and approved. 6. Granting consent to the unauthorised works would result in the '2' dwellings containing 14 bedrooms, relative to an approved 7 bedrooms, as well as additional bathrooms and kitchens. There was insufficient parking for this increased density and the overall development would not be in keeping with the character of the area. 7. Mr Doyle disputed that the lower ground floors would be separately occupied given common central stairways existed between all levels in each dwelling and conditions of consent which restrict the approved 'storage rooms' to non-habitable uses. 8. I noted however, that Vigor Master had lodged with the Court a third appeal against the Council's refusal of a separate application seeking to convert the lower level of No. 6 into a secondary dwelling (appeal 340401 of 2018). That appeal was listed for hearing in April, 2019. The proceedings 1. Expert evidence was provided to the Court and summarised in Expert Joint Reports: on BCA compliance by Mr Alexander for the applicants and Mr Rawson for the Council (Exhibits 2 and 9); and on planning matters by Mr Polvere for the applicants and Mr Mahony for the Council (Exhibit 7). 2. In the BCA joint reports, Mr Rawson maintained that the building had been altered so as to be capable of being readily converted into 4 occupancies. By example, the unauthorised doors in the side elevations were not required as access to the rear open space from the approved dwellings. The development should therefore be reclassified as a Class 2 building and the compliance works for such a classification be undertaken accordingly. Mr Alexander argued the application was to maintain the dwellings as two Class 1a dwellings and the NCC compliance works for a Class 2 building were therefore not required. 3. The BCA experts did agree that the new bedrooms on the first floor of both dwellings complied with the light and ventilation requirements of the NCC for Class 1a dwellings. Further, that the 'storage rooms' were only approved for storage, and if used for storage no NCC works were required. In inspecting these rooms, the BCA experts noted that the rooms were damp and musty due to lack of ventilation and poor external drainage and they were not fit for habitation. Inspection of external paving identified that the paving levels were not a minimum 50mm below the internal slab and the paving was not graded to direct water away from the building hence allowing water ingress. Works were required to ensure that the external surface and subsoil drainage requirements of the NCC were complied with. 4. The BCA experts also noted additional BCA non-compliances including the gap between the open stair treads exceeding 125mm, and that smoke alarms needed to be relocated on the lower levels and installed on the ground floors, with the alarms interconnected throughout. 5. The planning experts in their Joint Report (Exhibit 7) disagreed on whether or not alterations or extensions of an existing use could be dealt with as a modification application or required a separate development application. They considered this matter was for the Court to decide. They did however, address whether the development was substantially the same as the approved development given a modification application had been lodged. 6. In this regard, Mr Mahony largely repeated the Council contentions on this issue but he also noted that, if 4 dwellings were to be approved, there would be no direct access to the rear private open space areas for the 2 upper level dwellings. He also maintained that the insertions of rooms and windows in the roof space constituted a new third storey. 7. Mr Polvere argued that the development retained the key built form approved elements of building footprint, bulk, access and linkages, views and vistas, setbacks, parking and access, and drainage. There would be a very minor increase in building height in the centre of the building to accommodate the use of the existing roof space for habitable rooms. However, the building still complied with the maximum height requirement of the LEP and any increase in floor space was generally contained within the approved building envelope. 8. He further argued that the proposed works would not have any adverse impacts on neighbours in terms of overshadowing or views and the approved development was already in part 3 storeys. Changes to windows and doors were not 'radical transformations' to the look of the building but the new doors improved pedestrian access within the site. 9. In terms of compliance with cl 16A of the ARH SEPP, Mr Mahony submitted that the new external doors would activate interface with adjoining residents and these, along with separate occupation of the lower floors, would result in privacy and amenity impacts for neighbours, intensifying a prohibited use of the site in a way which would be out of character with the local area. 10. Mr Polvere argued that the bulk and scale of the approved development had been determined by the Council to be compatible with the local area, and this development had not materially changed. There would be no adverse amenity impacts for neighbours with screens or fencing providing privacy. Side pedestrian access would be expected for dwellings in the area. 11. At the commencement of the hearing, the Court, the parties and their experts viewed the site and surrounds and heard from 3 objecting neighbours, all residents of Maroota Way in close proximity to the site. The objectors raised similar concerns to those raised in written submissions. In particular, they were concerned that the dwellings had been constructed to be able to be used as 4 dwellings not 2 which would place pressure on services, add to additional on-street parking demand, and increase problems with garbage collection on a narrow private road. Concern was also raised that non-compliant work was covered up during Council inspections, and No. 6A had been marketed for sale as a 6 bedroom, 5 bathroom dwelling. 12. The resident of 4 Maroota Way also raised concerns with overlooking of his private open space from the (unauthorised) window in the (unauthorised) bedroom on the first floor. Further, the (unauthorised) side door on the lower ground floor would promote the use of the path at the side of the dwelling which ran past his bedroom which would increase noise especially at night. 13. The Court and the parties then inspected the two dwellings on the site. I noted that neither the approved plans, including as modified with approval, nor the proposed plans before the Court, reflected what currently exists on site. What existed also included, but was not limited to: the raising and paving of outdoor areas as noted by the BCA experts impacting on drainage; outdoor timber decking; privacy screens to the unauthorised upper level windows (but installed at the wrong angle to achieve privacy); an ensuite off one of the 'storage' rooms; and tiling and use as habitable space of the tandem parking space within the garage of No. 6A. 14. Following the inspection, Vigor Master indicated a preparedness to remove the majority of the unauthorised works to ensure only 2 dwellings would remain on the site, and to undertake the required works sought by the BCA experts so that these dwellings would be BCA/NCC compliant. 15. Accordingly, with the consent of the parties, the hearing was adjourned in order for the applicants to prepare amended plans showing all unauthorised works sought to be retained, new works required to be undertaken, and works to be demolished. 16. I also ordered that addendums be filed to the joint expert reports if required or for the parties to confirm if the works now proposed to be demolished, retained, or undertaken by the applicants satisfied the Council's contentions and requirements, including having regard to the issues raised by neighbours. 17. As a result, when proceedings resumed, the parties advised the Court that the amendments proposed to the modification application were not opposed by the Council and could set the terms on which a building information certificate could issue, as the amendments undertaken addressed the contentions. 18. The applicants subsequently sought leave to amend the applications accordingly, not opposed by the Council. Leave was granted to amended plans for the BC application (Exhibit A) and for the modification application (Exhibit B). 19. Usefully, Exhibit A also included a schedule for each dwelling comprising a table indicating 'unauthorised works to be demolished', 'rectification works (required) for NCC compliance', and 'unauthorised works to be retained'. 20. For No. 6, the unauthorised works to be demolished include removal of the doors to the storage rooms on the lower levels and in the side elevation, removal of the laundry and kitchen on the ground level, and works to facilitate use of part of the upper level for a bedroom and study only rather than for 2 bedrooms. Rectification works include those required for NCC compliance (in terms of the stairs and smoke alarms), reorientation of the first floor privacy screens to ensure privacy, and stormwater rectification works. Unauthorised works to be retained comprise timber decking and side stairs, new skylights, and an additional upper level window. 21. Similarly, for No. 6A, the unauthorised works to be demolished include removal of the doors to the storage rooms on the lower levels and in the side elevation, removal of the ensuite to one of the storage rooms, removal of the laundry and kitchen on the ground level, and removal of the tiles in the garage so this space reverts to its approved use for parking. Rectification works include those required for NCC compliance (in terms of the stairs), reorientation of the first floor privacy screens to ensure privacy, and stormwater rectification works. Unauthorised works to be retained comprise the timber decking and side stairs, new skylights and an additional upper level window. 22. The amended modification application plans (Exhibit B), also contain a schedule of all of the proposed works relative to the latest approved works for each of the dwellings. This schedule aligns with the works to be undertaken in order for a building information certificate to issue. 23. The Council's expert, Mr Mahony, then gave uncontested evidence confirming how the amended applications address the Council's contentions and residents' concerns. In this regard, the changes now sought to the approved dwellings would result in a development remaining as only 2 dwellings, with privacy and amenity issues addressed. Having regard to the substantive natures of dwellings in the street, and the agreed works now to be undertaken (primarily comprising removal of unauthorised works, limiting the number of bedrooms and kitchens to what had been approved, adding privacy devices, and removing any suggestion of or ability for a change of use of the approved development), he accepted, and considered the Court should be satisfied that, what was proposed was substantially the same as what had been approved. 24. Further, the development would remain largely the same in terms of streetscape presentation and bulk to what had been approved and to what existed in the area and was therefore generally consistent with the character of the local area. 25. Agreed conditions of consent to the modification application were subsequently filed with the Court along with agreed terms on which the building information certificate should issue. A total of 24 conditions as to the works required to be undertaken, and the certification required for these works, constitute those terms. The works are all required to be undertaken within 180 days of the Court making the suggested orders. 26. The conditions of consent to the modification application include the requirement for additional privacy screens. A restrictive covenant is required on the title of both lots precluding the use of the lower ground floor 'storage' rooms other than for storage. A condition also limits each dwelling to comprise one dwelling only. Further, the condition of consent requiring No. 6 to be used for affordable rental housing for 10 years is now proposed from the date of issue of the building information certificate the subject of these proceedings rather than from the date of issue of the occupation certificate for the development. 27. The Council therefore submitted that, subject to the applicants 'undoing' or rectifying those unauthorised works that would lead to additional dwellings on the site or cause impacts to neighbours, the Court could be satisfied that the issues raised by objectors will be addressed. 28. On the basis of the Council's agreement to the works to be retained, removed or undertaken, Vigor Master discontinued appeal 340401 of 2018 which sought to convert the lower level of one of the dwellings (No. 6) into a secondary dwelling. Findings 1. The primary concern of the Council, and of the adjoining neighbours, with the unauthorised works on the site related to conversion of the approved 2 dwellings, potentially into 4 dwellings. This changed the approved use of the site and also increased its density. There were consequential impacts on the amenity of neighbours and on Maroota Way, as well as with the ability of the dwellings to comply with NCC requirements. 2. In is not material to the outcome as to whether consent to extend an existing use is issued in response to a development application or a modification application; consent is still required and providing the requirements of the EPA Act and Regulations relating to existing uses are considered and met. Further, s 4.55(3) of the EPA Act states that a reference in the Act to a development consent includes a reference to a development consent as so modified. 3. I note also that three other consents to modification applications have been issued by the Council since the site was rezoned (ie the new LEP commenced) and the development became an existing use. Further, consent under either type of application is based on a consideration of the impacts and core statutory controls and outcomes required by the LEP and the requirements for consent to alter existing uses under the EPA Act. 4. In this regard, I agree with the Council that the requirements at Division 4.11 of the EPA Act and Part 5 of the Regulations for modifying or extending an existing use are met. In particular, the alterations are minor relative to the existing (approved) use and the use has not changed. 5. Unlike many existing uses which have existed for some time, this is an instance of a development becoming a prohibited (ie existing) use during its construction as a permissible and approved use. 6. With the substantial modifications proposed to remove the majority of the unauthorised works, the parties agreed that the development remains substantially the same as the approved development and that the requirements at s 4.55(2) of the EPA Act are met. I agree with that view. The development that now comprises the modification application is not a significant alteration to the existing use nor a change or intensification of that use. 7. The modified development the subject of the amended applications is largely contained within the approved building envelope, access to the approved dwellings remains confined to that approved, and the requirement not to use the lower ground storage rooms for habitable purposes is reinforced in the proposed conditions of consent and in the required works. 8. I also note that, whilst the storage rooms on the lower ground floors add to the floor space and bulk of what was originally approved, prior to these appeals the Council had already consented to this additional floor space by the granting of modification application consents and/or the issuing of building information certificates. Accordingly, the only decision required of the Court is to determine whether or not a proposed change of use of these rooms is appropriate. With the reinforcement of the use of these rooms being confined to storage only, that issue is resolved as no change of use is proposed or permitted. 9. The Council has the ability to take action for any breach of consent involving the habitable or other use of these rooms or other rooms in the future. With the removal of doors to the storage rooms and of an ensuite to one these rooms, habitable use is less likely. Similarly confining each dwelling to one kitchen limits use of either dwelling for more than one dwelling. In any event, the Court must assume the applicants will comply with the consent, notwithstanding the comments at [7]. 10. I am also satisfied that the impact on amenity of neighbours has been addressed with the removal of the side doors, reinstatement of a second parking space on No. 6A, installation of privacy screens to windows, and limiting the development to the approved 2 dwellings. 11. Given the amendments to the application proposed, I also agree with the planning experts that the dwellings as they exist today and as they present to the street are largely indistinguishable in terms of bulk and scale with the surrounding new dwellings in Maroota Way, some of which are either in part 3 storeys or appear 3 storeys. I also accept that the approved dwellings on the site were in part 3 storeys and the new 'proposed' use of the roof space is at the rear of the dwellings and not significantly perceptible from the street. 12. The proposed development as amended therefore, in my assessment, meets the required design considerations under the ARH SEPP including being compatible with the character of the local area. 13. Given the applicants' agreement to remove the majority of the unauthorised works and to undertake works to ensure NCC and BCA compliance, there are, in summary, no substantive grounds on which to withhold consent to the applications as amended, a view which, in essence, is supported by the Council. 14. The conditions of consent to the modification and on which the building information certificate should issue were agreed between the parties and address the contentions of the Council and the objections of the neighbours to the extent that these objections are relevant considerations. 15. Accordingly the applications are approved in the terms agreed between the parties. Orders 1. The Court orders that: 1. In terms of Modification Application DA/543/2012/D for the construction of affordable rental housing containing two dwellings at Lots 16 and 17 in DP 2706309, being 6A and 6 Maroota Way, Beecroft respectively; 1. Leave is granted for the applicants to amend the application in accordance with condition 1 of the revised conditions of consent at Annexure "A". 2. The appeal is upheld subject to the conditions in Annexure "A". 1. In terms of building certificate application number BC/15/2017 for dwellings at Lots 16 and 17 in DP 2706309, being 6A and 6 Maroota Way, Beecroft respectively; 1. Leave is granted for the applicants to amend the application in accordance with revised plans 6M0119 – B000, B103, B104, B105, B106, B202, B203, B204, B205, B206, D000, D103, D104, D105, D202, D203, D204 and D205, all Revision 2 and dated 01/02/2019, with associated schedule of works. 2. The appeal is upheld. 3. Hornsby Shire Council is directed, pursuant to s 8.25(3)(a) of the Environmental Planning and Assessment Act 1979, to issue a building information certificate in respect of the dwellings at 6 and 6A Maroota Way, Beecroft upon the satisfaction of the Council that the conditions in Annexure "B" have been met within 180 days of these orders. 1. In relation to both appeals, the exhibits are returned other than Exhibits A, B, 1 and 6. ………………………. Commissioner Jenny Smithson 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: 21 March 2019