Roberts v The Council of the City of Sydney [2019] NSWLEC 1496

Land and Environment Court New South Wales

Medium Neutral Citation: Roberts v The Council of the City of Sydney [2019] NSWLEC 1496 Hearing dates: 25 September 2019 Date of orders: 17 October 2019 Decision date: 17 October 2019 Jurisdiction: Class 1 Before: Dickson C Decision: The Court orders that: (1) The appeal is dismissed. (2) The modification application (D/2010/2063/E) to amend development consent D/2010/2063 by an internal reconfiguration and external alterations is refused. (3) The Exhibits are returned with the exception of Exhibits 2 and C. Catchwords: MODIFICATION APPLICATION – application to modify development consent – residential building- whether substantially the same – jurisdictional test – appeal dismissed Legislation Cited: Environmental Planning and Assessment Act 1979 Cases Cited: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Moto Projects (No 2) Pty ltd v North Sydney Council (1999) 106 LGERA 298 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Category: Principal judgment Parties: Allan Roberts (Applicant) The Council of the City of Sydney (Respondent) Representation: Counsel: A Roberts (Self-represented) (Applicant) A Simpson (Solicitor) (Respondent)

Solicitors: Sydney City Council (Respondent) File Number(s): 2019/223479 Publication restriction: No

Judgment 1. COMMISSIONER: The Applicant, Mr Allan Roberts lodged the modification application (D/2010/2063/E) with the Council on 11 February 2019. The modification application was subsequently refused by the Council and the applicant is appealing that determination in accordance with the provisions of s 8.9 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The works are proposed at 12 Ross Street, Forest Lodge. 2. The modification application sought consent for: "an internal reconfiguration to accommodate a total of 6 bedrooms, 1 lounge, 3 bathrooms, 1 laundry and 1 storage room. The proposal also included external alterations including the infill of the breezeway to the eastern boundary with associated roofing and the installation of an operable window to a room (proposed Bedroom 5) on the first floor." (Exhibit 2) 1. The original consent (D/2010/2063) involved: Alterations and additions to existing dwelling, including new rear extension on the lower ground, ground and first floors. The works in the original consent were described as follows: "Lower ground floor: - Demolish existing rear extension - New rear extension to the north-western side boundary containing a guest rook, laundry and bathroom. - New courtyard along north eastern boundary Ground floor: - Demolish rear extension - New rear extension to the north-western side boundary containing a bathroom, kitchen and dining room. - New rear balcony adjoining the dining room. First floor: - Internal reconfiguration - New rear extension to the north-western side boundary containing a bathroom, formal living room and rear balcony. - New rear balcony adjoining the formal living area…" (Exhibit 1) 1. The majority of the works have been completed on site and the application seeks retrospective approval of the works. These works are documented in the Statement of Facts and Contentions in Reply: "The proposal includes: Retrospective approval for works completed without consent, as follows: Lower Ground Floor, Side infill of existing breezeway with polycarbonate roofing; Ground floor, Retention of internal walls to create Bedroom 02 (formerly a lounge); Conversion of dining room into Bedroom 03; Replacement of door and window on rear elevation with French doors; First floor, Replacement of door and window on rear elevation with bi-fold doors; and Stairs leading to the attic..." (Exhibit C) 1. The Council opposes the application for the following reasons: 1. The proposal does not comply with s 4.55(2) of the EPA Act as the development is not considered to be substantially the same development as the development for which consent was originally granted. 2. The modification results in poor residential amenity, in particular in relation to solar access and ventilation. 3. The development is not in the public interest.