Bassett and Jones Architects Pty Limited v Waverley Council (No 2)

[2005] NSWLEC 530

Land and Environment Court

of New South Wales

CITATION:

Bassett and Jones Architects Pty Limited v Waverley Council (No 2) [2005] NSWLEC 530

PARTIES:

APPLICANT
Bassett and Jones Architects Pty Limited

RESPONDENT
Waverley Council

FILE NUMBER(S):

11126 of 2004

CORAM:

Moore C

KEY ISSUES:

Development Consent :-
Modification application
Substantially the same development
.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
.

CASES CITED:

Bassett and Jones Architects v Waverley Council [2005] NSWLEC 195;
Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298;
North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433;
.

DATES OF HEARING:

27 October 2005

EX TEMPORE JUDGMENT DATE:

10/27/2005

LEGAL REPRESENTATIVES:

APPLICANT
Ms M-L Taylor, solicitor
Norman Waterhouse

RESPONDENT
Mr P McEwen SC
INSTRUCTED BY
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Moore C


27 October 2005

04/11126 Bassett and Jones Architects Pty Limited v Waverley Council

This decision was given a s an extemporaneous decision. It has been revised and edited prior to publication.

JUDGMENT

1 This decision deals with a preliminary matter that has been referred to me for determination by the Acting Chief Judge and is confined to the simple point as to whether or not the proposed modification to the existing consent granted by Brown C (see Bassett and Jones Architects v Waverley Council [2005] NSWLEC 195) would result in a development which is substantially the same as the development to which that consent was given.

2 The application to modify is made pursuant to s 96AA(1)(a) of the Environmental Planning and Assessment Act 1979. This provision poses the threshold question for consideration as to whether or not the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all).

3 In essence the application seeks to add a proposed top storey facing McPherson Street to a mixed commercial/ residential development that has three elements, one fronting McPherson Street and two further elements behind. The application has the effect of seeking to reinstate the original design that was in the first instance put to the council. That original design was subsequently modified by the removal of the fourth storey at the McPherson Street frontage. The amendment also seeks to provide setbacks on either side of the dwellings at the McPherson Street frontage and to the commercial element on the ground floor for approximately half the depth of that first element of the building.

4 The tests which are to be considered as to whether or not the amendment is substantially the same or not have been dealt with in a line of authorities, the most commonly cited being that of Bignold J in Moto Projects No 2 Pty Limited v North Sydney Council [1999] 106 LGERA 298 at page 309. There, his Honour describes the nature of the test to be applied as one which is both quantitative and qualitative.

5 Although, in this appeal, the council has also raised a number of issues going to the substantive merit, they are not before me for consideration this morning – although Mr McEwen SC, senior counsel on behalf of the respondent, suggests that I should have some regard to the scale of the qualitative issues which might be in contention.

6 The matters that are dealt with in a table of numeric non compliances (which are the most presently significant elements) are that the original development application was non compliant with:

• the floor space ratio development standard contained in the Local Environment Plan of 1:1 but is proposed to be, both in the original plan and the proposed amended version, 1.2:1; and
• a maximum height requirement development standard contained in the Local Environment Plan of 9 m which is to be exceeded by ~ 2 m if the amendment were to be permitted.

7 I am satisfied that, although the question of the exceedance of the development standard in each instance may give rise to issues of significance in a merit assessment, the fact that the development standard is breached by the s 96AA modification application is not in itself a matter which causes the modification application to be transmuted into one which is not substantially the same as the development to which consent was given. I am satisfied that the mere passing of the threshold, whether it be of a substantial nature or merely de minimus, is not a relevant matter for consideration. This is consistent with the approach taken by other decisions in the Court which have held that SEPP 1 objections are not required for breaches of development standards in the context of a s 96 application for modification – a position which is equally consistently appropriately for a s 96AA modification application.

8 It is clear from the decision of the Court of Appeal in North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433 that the provisions of s 96, and by necessary inference those of s 96AA, are facultative and not restrictive and are designed to assist constructively the modification process rather than to act as a substantive impediment to it.

9 Whilst it is quite possible, given the nature of the modifications proposed (including the rear top level balconies now proposed), that the upper rear of the front building may give rise to significant issues of privacy, not merely between those balconies and the adjacent properties but also possibly those balconies and dwellings in the middle element of the development itself, I am satisfied that on a very fine balance the nature of the proposed change is not such that it would be described as not substantially the same as the original application as approved by Brown C.

10 The consequence is that I am of the view that the matter should go forward to a hearing on the merits of the modification application as sought. Therefore, I set the matter down for further callover before the Registrar on Tuesday, 1 November 2005.

Tim Moore
Commissioner of the Court