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. The role of the Court on appeal 1. In considering the appeal, the role of the Court is to re-exercise the functions of the consent authority, in this case the Council. The modification application was lodged with the Council pursuant to s 4.55(2) of the EPA Act which states: (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. Subsequently, unless the Court is satisfied that the matters in (a) through (d) of s 4.55(2) of the EPA Act are satisfied, the application cannot be consented to. Of relevance to the current appeal, Council argues that the test in (a), namely 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" is not met. Is it substantially the same? 1. To assist the Court, the parties prepared two individual statements of evidence: a statement by Mr Spiro Chahine for the applicant and a statement by Mr James Cooper for the Council. 2. Only Mr Cooper was available to be called to give evidence during the hearing. 3. Mr Chahine's evidence addresses the contentions raised by the Council in relation to residential amenity, in particular in relation to solar access and ventilation. His statement does not address the jurisdiction issue raised by s 4.55(2) of the EPA Act. 4. Mr Cooper details the history of the approved modification applications to the development consent as follows: "Amendment A: Modification to Condition 1 amended plans including the internal reconfiguration of the ground floor to relocate the bath and kitchen to the north side of the floor, extension of the ground floor by 1.15m, relocation and addition of windows on ground floor, changes to building materials including the use of double brick to support the upper levels and deletion of Condition 14 Dilapidation Report (Approved 8 June 2011). Amendment B: Modification to Condition 1 amended plans including the repositioning of the lower ground floor guest room and laundry, removal of internal walls on the ground floor to delete Bedroom 1 and create an enlarged lounge room and replace the level 1 formal living with a bedroom, extension of the level 1 balcony by 1.2m and extension of the lower-ground level by 660mm. (Approved 28 July 2011)." (Exhibit 3) 1. Mr Cooper argues that the proposal does not comply with the test in s 4.55(2) of the EPA Act for the following reasons: 1. The proposal includes the conversion of one lounge, one study and a dining room into bedrooms. The proposal will result in the doubling of approved bedrooms from 3 to 6. 2. The proposed modification will also reduce the amount of living spaces in the dwelling from 5 rooms to 3. 3. The combination of (1) and (2) will result in a significant increase in the amount of occupants within the dwelling, whilst reducing the habitable living space available. 4. The proposal includes the removal of the breezeway of the terrace. He argues that this is an important design element in the building type and provides amenity (light and ventilation) to the lower ground floor rooms. 5. The removal of the breezeway introduces boundary to boundary development which is in contrast to the previous form which had a 2.9m setback. 6. The floor area of the development has by each of the modification applications. 1. Mr Copper supports the preceding analysis with a comparative analysis between the approved plans of the original consent and the plans supporting the current modification application (Exhibit 3). 2. In support of the modification application Mr Roberts submits that the proposed modification is substantially the same as: there has been no change to the building envelope, the original consent included a front bedroom which is proposed to be reinstated and the structure is identical to that which was approved. 3. Mr Simpson relies on the decision of the Court in Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 ('Moto Projects (No 2) Pty Ltd v North Sydney Council') which he argues outlines the approach that should be undertaken by the Court in considering the test in s 4.55(2) of the EPA Act. In particular, he emphasises the following extracts of the case: "54. The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development. 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development. 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 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)." 1. Mr Simpson adopts the reasoning of Mr Cooper and argues that on the basis of his evidence, and the framework outlined in Moto Projects (No 2) Pty Ltd v North Sydney Council, the Court would conclude that the proposed modification application is not substantially the same development. Mr Simpson argues on these grounds the Court should refuse consent. Findings 1. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, Stein J found that the word "substantially" in this context means "essentially or materially or having the same essence." 2. I accept the submission of Mr Simpson at [15] that the framework in Moto Projects (No 2) Pty Ltd v North Sydney Council is also relevant to the consideration of the modification application against the test in s 4.55(2) of the EPA Act. 3. The test at s 4.55(2) of the EPA Act is therefore both a qualitative and quantitative one. Pepper J provides a summary of the relevant principles in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [173]: "The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated as follows: (1) first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); (2) the modification power is beneficial and facultative (Michael Standley at 440); (3) the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); (4) the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); (5) the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); (6) the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); (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. Applying the case law, I am not persuaded that the test at s 4.55(2) of the EPA Act is met by the modification application. Namely, I am not satisfied that if approved, the modified development will be substantially the same development as that approved in the original consent. My reasoning follows. 2. I accept the comparative analysis undertaken by Mr Cooper in his statement of evidence, summarised at [12]. In particular, I have given weight to the conclusion he draws that the removal of the breezeway and its replacement with boundary to boundary development at the rear of the property will take away an important element associated with the terrace building form. 3. I am satisfied that the modification application, when compared to the original consent, involves a material change to the allocation of, and balance between, living and bedroom spaces. I accept and adopt Mr Cooper's analysis at [12]. I find that this quantitative change is such as to render the modification application of an essentially different character to the original consent. I note that the original consent involved alterations and additions to the existing dwelling to primarily add living areas and service areas (bathrooms, laundry) to supplement the existing bedrooms (see [3]). 4. After a quantitative and qualitative comparison of the plans and documentation that accompany the original consent and the proposal before the Court in the Class 1 Application, I find that the modification application is not substantially the same development as approved in the original consent. Remaining contentions 1. Given my findings that I am not satisfied that the precondition for the exercise of the modification power at s 4.55(2) of the EPA Act has not been met, there is little utility in addressing the remaining contentions pressed by the Council. The modification cannot be approved. Orders 1. 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. ………………………. D M Dickson 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: 17 October 2019