Arrage v Inner West Council

[2018] NSWLEC 1628

Land and Environment Court

New South Wales

Medium Neutral Citation:

Arrage v Inner West Council [2018] NSWLEC 1628

Hearing dates:

8 November 2018

Date of orders:

07 December 2018

Decision date:

07 December 2018

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The orders of the Court are:

 

(1) The appeal is dismissed.

(2) The application to modify the development consent granted by the Court for DA201500129, is determined by refusal.

 (3) The exhibits are returned, with the exception of Exhibits A and 1.

Catchwords:

MODIFICATION APPLICATION: whether modification is substantially the same.

Legislation Cited:

Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Marrickville Local Environment Plan 2009
State Environmental Planning Policy no. 65 – Design Quality of Residential Apartment Development

Cases Cited:

Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Trinvass Pty Ltd V The Council of the City of Sydney [2018] NSWLEC 77
Vacik Pty Ltd v Penrith City Council, unreported

Texts Cited:

Apartment Design Guide, NSW Department of Planning and Environment, 2015
Marrickville Development Control Plan 2012

Category:

Principal judgment

Parties:

Michael Abou Arrage (Applicant)
Inner West City Council (Respondent)

Representation:

Counsel:
A Hemmings (Applicant)

  Solicitors:
Harrington Lawyers (Applicant)
S Turner with M Bonanno, Inner West Council (Respondent)

File Number(s):

2017/364602

Publication restriction:

Nil

Judgment

1. COMMISSIONER: Michael Abou Arrage (the Applicant) has appealed the refusal by Inner West Council (the Respondent) of his application to modify a development consent granted by the Court on 1 April 2015 for DA201500129. That consent had been granted pursuant to s 34(3) of the LEC Act after an agreement was reached between the Parties at a conciliation conference held pursuant to s 34 of the LEC Act.

2. The modification application was made subject to s 4.55(2) (formerly s 96(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), and the appeal is made pursuant to s 8.9 of the (EP&A Act).

3. The proposed development is located 62 Constitution Rd, Dulwich Hill (the Subject Site), which is also bounded by Grove St and the GreenWay corridor including the Sydney light rail. The light rail’s Arlington stop is located a short distance from the Subject Site.

4. On 31 August 2018 the Applicant was granted leave to rely on amended plans that now form the basis of this appeal. Those plans propose the following modifications to the previously approved development on the Subject Site:

1. modification of the approved fifth floor communal open space to provide three additional dwellings;

2. the addition of one level (a sixth storey) containing:

1. a two bedroom dwelling; and

2. communal open space, comprising seating, landscaping and BBQ;

3. modification to the lower ground floor residential bin store room.

5. The Subject Site is zoned B4 Mixed Use Development, and is an isolated triangular site surrounded by land zoned:

1. R1 General Residential to its north eastern boundary;

2. R4 High Density Residential to its southern boundary;

3. SP2 to its western boundary;

4. R2 to its north west, opposite the apex of the Subject Site at Constitution Rd.

6. The modified development as proposed, which is for a shop top housing development, is permissible on the Subject Site, with consent, under the provisions of Marrickville Local Environment Plan 2011 (MLEP).

7. The hearing commenced on-site and an inspection of the Subject Site was undertaken during which a submission was made by a resident of Grove St, Ms Jo Blackman, who raised the following concerns in relation to the Applicant’s modification application:

1. without any provision of any on-site resident parking, the modification would place further pressure on the availability of kerb side parking in the vicinity of the Subject Site;

2. the addition of more residents to the proposed development would increase local car traffic volumes in the area and increase accident risks;

3. the addition of more residents in the proposed development would reduce the amenity enjoyed by other local residents within local public open space areas;

4. the risk of the proposed additional storey creating overshadowing impacts on adjacent residential buildings;

5. the risk of the proposed additional storey creating privacy and overlooking impacts.

Statutory context

Environmental Planning and Assessment Act 1979

8. The modification application has been made under Section 4.55(2) of the EP&A Act, which provides as follows:

(2) 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.

9. The requirements of s 4.55(3) and s 4.55(4) are also relevant to this appeal, and provide:

(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.

10. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

(v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979),

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

11. Section 4.15(3A) of the of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

Marrickville Local Environmental Plan 2011

12. Development on the Subject Site is subject to the provisions of Marrickville Local Environmental Plan 2011 (MLEP). The following provisions of MLEP are of particular relevance in this appeal:

1. Clause 2.1, which establishes land use zones within the area covered by the plan as provided in cl 2.2 of MLEP. The Subject Site is zoned B4 Mixed Use, and under the provisions of cl 2.3 of MLEP, the objectives of this zone are to:

provide a mixture of compatible land uses.

integrate suitable business, office, residential, retail and other development in accessible locations so as to maximise public transport patronage and encourage walking and cycling.

support the renewal of specific areas by providing for a broad range of services and employment uses in development which display good design.

promote commercial uses by limiting housing.

enable a purpose built dwelling house to be used in certain circumstances as a dwelling house.

constrain parking and restrict car use

2. Clause 4.3, which concerns the height of buildings and which provides as follows:

(1) The objectives of this clause are as follows:

(a) to establish the maximum height of buildings,

(b) to ensure building height is consistent with the desired future character of an area,

(c) to ensure buildings and public areas continue to receive satisfactory exposure to the sky and sunlight,

(d) to nominate heights that will provide an appropriate transition in built form and land use intensity.

(2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

(a)The Subject Site has no height control identified within the Height of Buildings Map.

3. Clause 4.4, which concerns FSR and which provides as follows:

(1) The objectives of this clause are as follows:

(a) to provide an appropriate correlation between the size of a site and the extent of any development on that site,

(b) to establish the maximum development density and intensity of land use, taking into account the availability of infrastructure to service that site and the vehicle and pedestrian traffic the development will generate,

(c) to ensure buildings are compatible with the bulk and scale of the locality.

(2) The maximum floor space ratio for a building on any land is not to exceed the floor space ratio shown for the land on the Floor Space Ratio Map.

(a) The Subject Site has no FSR control identified within the Floor Space Ratio Map

State Environmental Planning Policy no. 65 – Design Quality of Residential Apartment Development and the Apartment Design Guide

13. The proposal is subject to the provisions of State Environmental Planning Policy no. 65 – Design Quality of Residential Apartment Development (SEPP 65) which aims to improve the design quality of residential apartment development in NSW.

14. The Apartment Design Guide (ADG), published by the NSW Department of Planning and Environment, explains how to apply SEPP 65’s design principles to the design of new apartments.

Marrickville Development Control Plan 2011

15. The Marrickville DCP 2011 (MDCP) has the following aims:

1. Review and amend the contents of Council’s existing DCPs so that they reflect contemporary planning practices;

2. Incorporate the amended/updated provisions of the existing DCPs and codes together with new planning provisions on contemporary and other planning issues into a single DCP; and

3. Build upon MLEP 2011 by providing detailed objectives and controls for development.

16. The sections of MDCP that are of particular relevance in this appeal are as follows:

1. Part 2 which provides Generic Provisions including for the following:

1. Equity of access and mobility (Part 2.5);

2. Parking (Part 2.10)

3. Landscaping and open spaces (Part 2.18)

4. Site facilities and waste management (Part 2.21);

2. Part 5, which provides guidance in relation to commercial and mixed use development;

3. Part 9, which includes guidance on the strategic context for development in specific areas including for:

1. Hoskins Park (Part 9.11).

Contentions

17. At the commencement of the hearing, the Parties confirmed that the contentions between them in this appeal were as follows:

1. Is the Applicant’s modification application substantially the same development as the development for which consent was originally granted, as required under s 4.55(2) of the EP&A Act ?

2. Does the Applicant’s modification application represent a form of ‘development by creep’?

3. Does the proposed development satisfactorily address the design principles in SEPP 65?

4. Does the proposed modification application meet the objectives of clauses 4.3 and 4.4 of MLEP concerning height and FSR controls applicable to the Subject Site?

5. Does the proposed modification application satisfactorily address the applicable provisions of MDCP 2011?

6. Is the Applicant’s modification application in the public interest?

Is the Applicant’s modification application substantially the same development as the development for which consent was originally granted?

18. As noted previously (see above at [2]), this is an appeal against the Respondent’s refusal of a modification application made pursuant to s 4.55(2) of the EP&A Act, and under that section of the Act, I must be 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).

19. Satisfaction on this point enlivens the power for the consent authority, or the Court on appeal, to grant consent to the application that is the subject to the appeal.

20. The specific provisions of s 4.55(2) of the EP&A Act were provided above at [9].

21. The statutory test in s 4.55(2)(a), requiring that the consent authority be satisfied as to whether the development modification is substantially the same development as the development for which consent was originally granted, has been helpfully summarised in a recent judgment by His Honour Moore J in the matter of Trinvass Pty Ltd V The Council of the City of Sydney [2018] NSWLEC 77 (Trinvass).

22. Ms Hemmings, for the Applicant, drew to the Court’s attention to paragraphs [22] to [28] of Trinvass as being of greatest relevance in this appeal:

[22] The starting point for any consideration of whether or not a development modification will result in a development that is substantially the same is that - as discussed by Stein J in Vacik Pty Ltd v Penrith City Council, unreported, 24 February 1992 (Vacik) - his Honour observed that the Applicant for modification bears the onus of satisfying me that the proposed development as modified will be substantially the same.

[23] Those remarks of his Honour are consistent with those of the Chief Judge in Australian Protein Recyclers to which I have earlier adverted. In Vacik, his Honour went on to say - and to sound the cautionary note - that it was not appropriate simply to say that the nature of the development - in that case an extractive industry - if amended would be the same use and would therefore be substantially the same development.

[24] Stein J went on to say that it was necessary to consider whether the proposed modified development would be essentially or materially or having the same essence as that which had been originally approved.

[25] These comments by his Honour in Vacik were endorsed by the Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 (Michael Standley) where the learned President endorsed, at 475, the sentiments expressed by Stein J in Vacik.

[26] At the same time, the President also explained - also on 475 - that the process of permitting modification of a development consent is one which should be regarded as beneficial and facultative, notwithstanding the onus of proof relying on the Applicant. Although endorsing the view of Stein J in Vacik, the Court of Appeal in Michael Standley did not in any way set any further test for assessing whether the development was substantially the same or not.

[27] However, in 1999, Bignold J gave a decision in Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 (Moto), where his Honour, after dealing with the facts of the proposed modification development, went on to say, at [55] and [56]:

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.

I interpolate that the position now is as required by s 4.55(2)(a) that I must be satisfied that it is essentially or materially the same as the development for which consent was originally granted. That, although differing somewhat from what his Honour described, causes no particular difficulty in the present circumstances. His Honour then went on to say:

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).

[28] That test - that is a two-stage test of considering the proposed modified development - is that which is currently required to be addressed.

23. I draw from these paragraphs that:

1. the Applicant seeking the modification bears the onus of satisfying me that the proposed development as modified will be substantially the same (Vacik);

2. the process of permitting modification of a development consent is one which should be regarded as beneficial and facultative, notwithstanding the onus of proof relying on the Applicant (Michael Standley);

3. the result of a comparison between the development, as currently approved, and the development as proposed to be modified must be a finding that the modified development is “essentially or materially” the same as the (currently) approved development (Moto);

4. 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) (Moto).

24. During the hearing the Parties made submissions with respect to the comparison between quantitative and qualitative aspects of the proposed modification in relation to the approved development on the Subject Site.

Quantitative comparison

25. The Parties’ expert planners, Mr Ali Hammoud (for the Applicant) and Mr Asher Richardson (for the Respondent) provided oral testimony during the hearing, during which they agreed details of the quantitative differences between the proposed modification and the development as approved. A tabulated summary of these differences was tendered as evidence during the hearing.

25. The experts confirmed that while certain aspects of the proposed development remained unchanged between the approved development and the Applicant’s modification application, certain other aspects had changed, as follows:

1. The aspects of the approved development that remained unchanged under the modification application included:

1. the development remained defined as a shop top housing development with ground floor retail premises;

2. the retail component of the development would include two retail premises with floor areas that differed by less than 2% between the two designs;

3. the built form was built to all boundaries between ground level and level 4;

4. 100% of all units achieved at least 2 hours of solar access between 9:00am and 3:00pm on 21 June;

5. the proportion of units that achieved natural cross ventilation in both schemes was similar (69.2% against 70.6%);

6. building separations to the surrounding R2 (22m) and R4 (16.9-18.0m) zones were unchanged

7. the provision of no car parking spaces for the use of both residential and commercial users of the proposed development.

2. The aspects of approved development that would change under the modification application included:

1. an increase in the total number of units in the development increased from 13 units in the approved development to 17 units in the modification application;

2. an increase in gross floor area from 1071m2 in the approved development to 1285m2 under the modification application;

3. an increase in FSR from 4.26:1 in the approved development to 5.08:1 under the modification application;

4. an increase in the number of adaptable housing within the proposed development, from one of 13 units in the approved development (7.7%) to five of 17 units under the modification application;

5. a decrease in the building separation to the surrounding R1 zone at 66-72 Constitution Rd to the north of the Subject Site from 18m in the approved development to 15.2m in under the modification application;

6. a change to the building form from:

1. a part 5/part 6 storey design in the approved development, to a part 6/part 7/part 8 storey development under the modification application;

2. an increase in building height from 22.3m to 25.3m.

7. a reduction in communal open space from 145.1m2 in the approved development to 120m2 under the modification application, with the loss of all (42.53m2) of the approved internal communal room space;

8. an increase in landscaping area from a nil area in the approved development to an area of 27.9m2 under the modification application.

Qualitative comparison

27. The expert planners also provided testimony in relation to the qualitative differences between the approved development and the design of the building under the modification application, and the following points were drawn to the Court’s attention:

1. Mr Hammoud said that the currently approved development had no landscaping plan for the building, and that under the modification application some 27.9m2 of landscaping would be provided adding to the amenity to the proposed communal open space;

2. Mr Richardson said that in his opinion the configuration of the communal open space in the approved development was to be preferred to that proposed under the modification application. He said that proposed modification removed elements of the communal open space, including internal spaces, a bathroom facility and a pagola area, and that the variety of spaces that would be available to all future residents was diminished, and, as a consequence, the utility of the building as a residential development had been qualitatively altered.

28. The Respondent submitted that the changes in the configuration of the communal open space represented a substantial qualitative difference between the approved development and modification application for which the Applicant seeks approval under this appeal.

29. The Applicant submitted that modification application, if approved, would result in changes to the approved development that were beneficial, including improvements in landscaping outcomes, an enhancement of the dwelling mix available within the development, including a higher proportion of adaptable dwellings.

Conclusions from the comparison of the approved development and the modification application

30. Having considered the quantitative and qualitative differences between the development for which consent was originally granted, and the design proposed under the modification application in this appeal, and notwithstanding the fact the nature of the proposed development would continue to be for a shop top housing development with ground floor retail premises, I have concluded that the modification application does indeed differ, both quantitatively and qualitatively, when compared to development for which consent was originally granted as follows:

1. the proposed modification differs quantitatively when compared to the development for which consent was originally granted in that it would result in:

1. a 30% increase in the number of units within the proposed development;

2. a 19.25% increase in the FSR of the proposed development;

3. an 13.5% increase in building height;

4. a 14.3% increase in the number of storeys;

5. a 17.3% (25.1m2) reduction in common open space;

6. a 100% (42.53m2) reduction in internal communal room availability on the rooftop space that would be available to an increased number of residents;

2. the proposed development under the modification application differs qualitatively when compared to the development for which consent was originally granted in that it would result in:

1. a reduction in the space and functionality of the communal open space on the rooftop due to the removal of all internal communal room space on the rooftop, and some facilities important to the functionality of the space, such as a toilet;

2. an increase in competition for use of the communal open space as a result of the larger number of residents under the modification proposed.

31. As a consequence of my conclusions above at [30], I find that:

1. the proposed development is not “essentially or materially” the same as the currently approved development on the Subject Site as it differs ion important respects, both quantitatively and qualitatively, in comparison to the approved development;

2. the proposed modifications are not beneficial nor facultative in comparison to the development for which consent was originally granted; and

3. the Applicant has not satisfied me that the proposed development as modified will be substantially the same, notwithstanding that the nature of the development, as modified, would remain unchanged.

32. Based on my findings at [31], I also find that the precondition within s 4.55(2) of the EP&A Act, that I be satisfied that the development as modified would be substantially the same development as the development for which consent was originally granted, is not met.

33. Because I have found that the development if modified is not substantially the same development as originally approved, I have no power or jurisdiction to approve this application under s 4.55(2) of the EP&A Act.

Orders

34. The orders of the Court are:

1. The appeal is dismissed;

2. The application to modify the development consent granted by the Court for DA201500129, is determined by refusal;

3. The exhibits are returned, with the exception of Exhibits A and 1.

______________________

Michael Chilcott

Commissioner of the Court

Decision last updated: 11 December 2018