Claron Projects Pty Ltd v Leichhardt Municipal Council

[2004] NSWLEC 296

Land and Environment Court

of New South Wales

CITATION:	Claron Projects Pty Ltd v Leichhardt Municipal Council [2004] NSWLEC 296
PARTIES:	APPLICANT Claron Projects Pty Ltd RESPONDENT Leichhardt Municipal Council
FILE NUMBER(S):	10153 of 2004
CORAM:	Bly C
KEY ISSUES:	Development Application :- section 96 modification - residential flat building
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979; s 96
CASES CITED:
DATES OF HEARING:	24/05/2004
DATE OF JUDGMENT:	06/16/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan SOLICITORS Robilliard Plowman Herat RESPONDENT Mr B J Preston SOLICITORS Pike Pike & Fenwick

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10153 of 2004 Bly C 16 June 2004

Claron Projects Pty Ltd
Applicant

v Leichhardt Municipal Council
Respondent Judgment

Introduction

1. This appeal relates to an application to amend, pursuant to s.96 of the Environmental Planning and Assessment Act 1979 ("the EPA Act"), the existing development consent No. D/1999/535 ("the original consent"), which was granted by the Leichhardt Municipal Council on 10 July 2001.

2. The original consent is for alterations and additions to the existing two-storey dwelling at 50 Louisa Road, Birchgrove, so as to create a residential flat building containing two dwellings. It involves the retention of the existing two-storey external walls, window openings, internal walls, floors and ceilings. The existing roof is to be removed and a new third-floor with a garage plus a fourth floor within the new roof is to be constructed.

3. The original consent was modified by the council on 19 November 2003 ("the modification approval"). The modifications involved on that occasion include the demolition of all internal walls and floors of the existing building and the complete redesign of the two affected levels. These demolition works have now been completed.

4. There was another s 96 modification approved by the council involving deletion of certain conditions of consent. This approval has no bearing on the matter before the Court.

5. The subject application involves the demolition of the majority of the external walls of the building. These demolition works have been carried out. The application also proposes that the demolished walls are to be reconstructed on new footings in their original configuration and reusing the bricks saved from the demolition.

6. It was not in dispute that the walls were demolished so as to enable new footings to be provided because the original walls were unsupported by footings and would have been unable to sustain the loads which would be imposed upon them by the construction of the proposed to new upper levels.

7. The application was refused by the council on 17 February 2004 for the reason that:


The application is not substantially the same as D/1999/535 and therefore is not a valid application under section 96 of the Environmental Planning and Assessment Act 1979.


8 . This reason for refusal became the principal issue in the case. The second issue to arise involves the question of whether or not the subject application should be publicly notified in accordance with Leichhardt Municipal Council's Development Control Plan No 36 - Notifications ("the DCP"). Given any decision to refuse the application this issue does not require any further consideration.

9 . Relevant to the principal issue, s 96 (1A) of the Act provides that:

(1A) Modifications involving minimal environmental impact .
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 proposed modification is of minimal environmental impact, and
(b) 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
(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 under section 72 that requires the notification or advertising of applications for modification of the development consent, and
(d) it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

10 . In relation to the question of whether the proposed modification is of minimal environmental impact (s 96 (1A) (a)), the question arises as to whether the process of demolition and reconstruction of the external walls and whether the walls once reconstructed would have more than a minimal environmental impact. The demolition and reconstruction of the external walls are not matters contemplated by the original proposal and considered in isolation these additional works could result in some impacts.

11 . However, having inspected the site and observed its relationship to the street and the adjoining properties and there being no persuasive evidence to the contrary, I am satisfied that the additional impact of these works in the context of the otherwise approved works would have been minimal. As for the walls in their anticipated completed form I am also satisfied that they would have a minimal environmental impact because they will be essentially identical to the walls which they replace.

12 . The next question to be dealt with is whether the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted (s 96 (1A) (b)). This test requires that the subject application be considered by comparison with the original consent, which describes the development for which consent was originally granted . The effect of the modification approval cannot be taken into consideration here being excluded by the reference to the originally granted consent, before that consent as originally granted was modified (if at all).

13 . As a consequence it is of no relevance to consider whether the subject application involving demolition and reconstruction might result in a development that is substantially the same as the original consent as modified by the modification approval.

14 . The development application form associated with the original consent includes a description of works for the then proposed development as remove existing roof and erect two additional levels and the proposed use as two dwellings. The application was determined by the granting of conditional development consent, with the proposed development described therein as:

Additions and alterations to existing two-storey dwelling and conversion into a residential flat building containing two dwellings and strata subdivision.


15 . The plans which are referred to in the original consent show that all of the external walls over both levels of the existing building are to be retained although some relatively minor adjustment to some of the fenestration is proposed.

16 . There are about 46 linear metres of external walls at the lower ground floor level and there are about 51 linear metres of external wall at the ground floor level. The subject application proposes the demolition of all but about 16 linear metres of the external walls of the lower ground floor and all of the external walls of the ground floor. About 2 linear metres of an internal wall are also to be demolished.

17 . There is no doubt in my mind that that had the original proposal been built and used as originally approved it would be virtually indistinguishable from the development which would result from a consent amended by the subject application. If that were the only consideration then there would be no doubt that the s 96 (1A) (b) test was met.

18 . But the test requires more than just a comparison of the differences between the building and use that would result from the original consent and the building and use that would result from the amended consent.

19 . Development is defined in the Act as:

(a) The use of land, and
(b) The subdivision of land, and
(c) The erection of a building, and
(d) The carrying out of a work, and
(e) The demolition of a building or work, and
(f) Any other act, matter or thing referred to in section 26 that is controlled by an environmental instrument, but does not include any development of a class or description prescribed by the regulations for the purposes of this definition.


20 . By referring to the term development the s 96 (1A)(b) test therefore also requires an examination of the process of demolition and erection of buildings and works.

21 . In the context of the definition of development, the effect of the subject application is that the consent as modified will have a number of relevant characteristics, which must be compared to the original consent. First it comprises the use of land and this will remain unchanged. Second, the strata subdivision approval will also remain unchanged.

22 . Third the subject application includes the demolition of a building or work comprising most of the external walls of the (then) existing building whereas the original external walls were to be retained almost entirely entact. This is in my opinion a material and significant difference

23 . Fourth it comprises the erection of a building comprising the erection of new walls to a height of two storeys around three sides of the building on top of proposed new footings plus a new wall on top of the existing north wall whereas the original proposal was to be erected on top of the existing external walls. Even though these reconstructed walls will provide the same support for the new upper structure the reconstruction of the walls is also a material and significant difference.

24 . Taking into account the extent of additional demolition of the building (ie excluding the demolition of the roof) and the additional building construction it is clear that the consent as modified can no longer be described as additions and alterations to existing two-storey dwelling and conversion into a residential flat building. It would not be incorrect to describe the original consent as modified by the subject application as: the demolition of an existing two-storey building and the erection of a new three-storey plus attic residential flat building.

25 . The fact that these external walls needed to be demolished so that appropriate footings could be constructed sufficient to support the entirety of the proposal makes no difference to my conclusions. Nor does the fact that the bricks recovered from the demolition of the walls are to be reused.

26 . In these circumstances I have decided that even though the resulting built form and land use will be almost identical, the consent as modified by the subject application would not be for substantially the same development as the development for which consent was originally granted. Therefore the subject application cannot be approved.

Orders

1. The appeal is dismissed.
2. The development application pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 to amend existing Development Consent No. D/1999/535 for alterations and additions to the existing two-storey dwelling at 50 Louisa Road, Birchgrove, and its conversion into a residential flat building containing two dwellings and strata subdivision is refused.
3. The exhibits are returned.


___________
T A Bly
Commissioner of the Court
rjs/mp