D L Newport Pty Ltd v Northern Beaches Council

[2017] NSWLEC 1661

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	D L Newport Pty Ltd v Northern Beaches Council [2017] NSWLEC 1661
Hearing dates:	30 November , 1 December 2016, 23, 24 February, 13 March 2017, 15 May 2017, 13 June 2017 (further submissions)
Date of orders:	21 November 2017
Decision date:	21 November 2017
Jurisdiction:	Class 1
Before:	Dixon C
Decision:	The appeal is dismissed and the exhibits are returned
Catchwords:	MODIFICATION – of a development application to relocate the driveway and vehicular access into a higher hazard flood area – does the relocated driveway present an unacceptable risk to life - jurisdiction – does the owners’ consent relied upon by the applicant satisfy the requirements of cl 115 (1) (h) of the Environmental Planning and Assessment Regulations 2000 – whether the development after modification is substantially the same as the original consent
Legislation Cited:	Corporations Act 2001 Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1979 Local Government Act 1993 Pittwater Local Environmental Plan 2012
Cases Cited:	Botany Bay City Council v Minister for Planning and Infrastructure & Ors [2015] NSWLEC 12 Moorebank Recyclers Pty Ltd v Liverpool Council [2009] NSWLEC 100 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 Mulyan Pty Ltd v Cowra Shire Council and Anor [1999] NSWLEC 212; (1999) 105 LGERA 26 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; 149 LGERA 329 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8
Texts Cited:	Newport Commercial Centre Master Plan 2007 Pittwater Development Control Plan 2012 Pittwater Development Control Plan 2015
Category:	Principal judgment
Parties:	D L Newport Pty Ltd (Applicant) Northern Beaches Council (Respondent)
Representation:	Counsel: Mr N Eastman (Applicant) Mr A Stafford (Respondent)   Solicitors: Dentons Australia Pty Ltd (Applicant) King Wood & Mallesons (Respondent)
File Number(s):	2016/00157863
Publication restriction:	No

Judgment

1. D L Newport Pty Ltd has made application under s 96(2) of the Environmental Planning and Assessment Act 1979 (the EPA Act), directly to the Court under s 96(8), for the modification of the development consent granted by the Court in proceedings no: 2013/10799. The development consent the subject of the modification application was for the construction of a three storey shop top housing development at 316 – 324 Barrenjoey Road, Newport, with retail premises on the ground floor, residential development above and car parking for residents underground and for retail visitors on a raised area accessed from the entry ramp off Barrenjoey Road; together with an attached dual occupancy and associated landscaping, at 2 The Boulevard, Newport (Court consent).

2. The development has been constructed. It is situated on the north – eastern corner of the intersection of Barrenjoey Road and The Boulevard and is a “gateway” to the Newport commercial precinct. Pedestrian access to the building is via the shop front entries in Barrenjoey Road. There are also access stairs and lifts to the residential parts of the building via entries from The Boulevard and Barrenjoey Road. The only vehicular access to the building is from Barrenjoey Road.

3. The applicant is seeking approval to move the constructed driveway and vehicular access from Barrenjoey Road to The Boulevard, and make a number of other modifications intended to either make the development consent consistent with the as built structure, or the construction certificate plans, or to attempt to address Council’s concerns about the as built structure. The amended modification application comprises the architectural plans dated 16 August 2016 and 22 February 2017 and the two sketches by the applicant’s architect /urban design expert Nigel Dickson, together with the applicant’s draft conditions (Exhibit C and Exhibit 17).

4. The site lies in the Newport Beach floodplain and is identified in the Council’s most recent flood study as flood prone. It is subject to flooding to varying degrees from both the Newport Beach Catchment and local runoff, up to the probable maximum flood (PMF) level. Running along the south eastern frontage is an open channel. The 12 Ft wide drainage channel carries runoff and flows from the southern arm of the drainage paths that flow through Newport (the channel land). Part of the channel land is owned by the Crown and the balance is owned by ASIC. This area is identified on DP 18415 and SP 92976 and can be seen on Site Location photo - Figure 1 reproduced below (Exhibit U).

5. The flood classifications around the site are identified on the extract below from the Flood Map. They represent the level of risk to life from flooding.

6. The subject site and surrounds have been classified as “high hazard flood storage ‘and the drainage channel through the site is classified as “high hazard Floodway” (SMEC 2004). This storage classification is due to the flat nature of the surrounds and the nature of the floodplain where it discharges to Newport Beach.

7. The application moves the sole vehicular access and driveway so that all traffic will be required to access the development from a new street, in circumstances where the new street is classified as having a greater flooding hazard than the approved Barrenjoey Road driveway access. The increased risk to life by forcing persons to traverse the drainage easement to access /leave the site and into an area of classified as H 6 high risk flooding is understandably a significant issue in the appeal.

8. In fact, it is the Council’s primary merit concern with the application and also relevant for the purposes of determining whether the development as modified is “substantially the same development” before the modification power becomes available; s 96(2)(a) EPA Act.

Contentions

9. The Council’s Amended Statement of Facts and Contentions (SOFC) filed on 22 February 2017 (Exhibit 21) lists 12 contentions. Two of the listed matter goes to my jurisdiction to determine this application.

1. First, the Council contends that the owner’s consent from the Crown to use the channel land for the new driveway is inadequate in that it does not meet the requirements of cl 115(1)(h) of the Environmental Planning and Assessment Regulation 1979 (Regulations); and

2. secondly, the Council contends on the evidence that the development, as modified, is not substantially the same as that the subject of the Court’s approval as required by s 96 (2) (a) of the EPA Act.

10. In the alternative, the Council submits, if I am satisfied that there is owner’s consent to the lodgement to the application, and that the development as modified is substantially the same development, then the proposal ought be refused on the evidence for the following merits grounds:

• The relocation of the driveway presents a greater risk to life than its current location at Barrenjoey Road frontage – as the Boulevard is a higher flood hazard area;

• The suitability of the design of the proposal as modified for a shelter –in –place flood emergency response strategy has not been demonstrated;

• The visual impact and loss of vegetation associated with the modified planter (and its context) near the entrance to lobby 1, the visual appearance of the driveway and view into the car park in the context of the boulevard, and the proposal to remove or substitute integrated planters; and

• The unacceptable impact on the amenity of the adjoining property from making non – trafficable areas to the north - east end of the development adapted to be capable of exclusive use and from the reduction in the extent of an acoustic attenuation wall adjacent to the car park ramp and air conditioning.

11. The Council also contends that the parking reconfiguration necessitated by the relocation of the driveway and additional shop (asserted to be constrained by the strata plan) is suboptimal and weighs against an approval although this would not, of itself, be a reason to refuse the proposal.

12. That said, if approved, the Council further submits that the proposal requires conditions and clarifications to the plans to specify or address;

1. Notwithstanding the matters actually shown on the plans that were the subject of leave on 22 February 2017, which matters are actually being advanced as part of the modification application; and

2. The matters that experts advanced as needing to be addressed if the impacts associated with Council’s contentions were to be considered acceptable or eliminated.

Jurisdiction – Owner’s consent

13. Owner’s consent to the lodgement of this modification application is required by cl 115(1) (h) of the EPA Regulations (Regulations). In this case the clause operates as a jurisdictional prerequisite to a valid application: Sydney City Council v Ipoh Pty Ltd (2006) 68 NSWLR 411; 149 LGERA 329 at [34] as there is no pre-existing owner’s consent: Moorebank Recyclers Pty Ltd v Liverpool Council [2009] NSWLEC 100 at [23] per Lloyd J.

14. The applicant submits that all of the owners of the land the subject of the development have provided consent to the making of this application as is expressly required by cl115. In that regard, I accept that the letter from the body corporate on behalf of the retail and residential owners of the land, and the correspondence from Ms Emma Pate dated 17 April 2017, as the owner of that part of the site the subject of the proceedings at 2 The Boulevard, satisfy the requirements in cl 115 (1) (h) of the Regulation. I also accept, contrary to the Council’s view that the owner’s consents relied upon by the applicant from the Crown and ASIC are adequate. My reasons for this follows.

15. However, before anything else I need first to explain how the ownership of the channel land ended up split between the Crown and ASIC.

Who owns the channel land?

16. Helpfully, the Council has unravelled the title issue to the channel land in its written submissions (CWS at [16] - [47]), and the applicant’s written submissions (AWS) and submissions in reply (AWSR) at [point 2]) complete the puzzle in my assessment.

17. In brief, the CWS records at paragraphs [22] – [35] that by a grant dated 5 January 1926 and registered on 15 February 2026, the Crown granted the Boulevard Estates (Newport) Limited “about” 2 acres identified in Vol 3831 Fol 74 (in Exhibit 26), excluding “the Drain and Stormwater Channel nine feet wide passing through this land in a North Easterly direction”. Being a reservation in the Crown grant, the channel remained with the Crown. A certificate of title was issued in Vol 3849 Fol 94.

18. A subsequent certificate of title in Vol 4301 Fol 5 (also in Exhibit 26) included the land comprised in Vol 3849 Fol 94, the plan in which the folio continued to show the 9 foot wide channel excluded from the “about” 2 acre grant that had been the land shown in Vol 3831 Fol 74. The land in Vol 4301 Fol 5, including the “about” with 2 acre grant, as well as other land not in that folio (all of which is identified in the title of the plan ), was subdivided by DP18415 (Exhibit 14) on 14 July 1938. That plan had originally referred to the land in Vol 3849 Fol 94, but was corrected with the new Vol 4301 Fol 5.

19. The channel on DP 18415 was marked as 12 feet wide - 3 feet wider than the channel reserved to the Crown.

20. A new certificate of title, being Vol 5563 Folio 42, was issued to Boulevard Estates (Newport) Pty Limited for a series of specific lots shown in DP 18415 from which a series of lots were transferred. The 12 foot wide channel that was shown on DP 18415 did not have a lot number and was not part of any of these lots. Consequently, the 3 foot wide additional strip of channel remained in Vol 4301 Fol 5, which land remained owned by Boulevard Estates (Newport) Limited. The Auto-CONSOL that was issued when volume 4301 Fol 5 was purportedly cancelled only contained lots 1 and 2 in DP 456918, which was identified as road owned by Council.

21. Relevantly, the residue 3 foot wide strip of land remained owned by Boulevard Estates (Newport) Pty Limited.

22. None of the notations on these plans used the form of words that would cause the channel to be dedicated to Council (nor could they have, given that the land was reserved to the Crown anyway). Section 398 of the Local Government Act 1993 (repealed - section 49(3) of the Local Government Act 1993) provides for a drainage reserve to be vested in the Council on reservation of lands for drainage on the registered plan or by agreement between the owner and the Council. Deposited Plan 18415 was amended before registration to delete the words “drainage reserve” so that the only words “drain and stormwater channel 12 foot wide” appear instead.

23. According to the Council there is no document, instrument or notice that would suggest that the Council has any interest in the channel. Nor has the applicant provided any information as to whether any other person might have an interest in the channel – including whether searches were in fact conducted as to whether Sydney Water might have an interest in the channel. (Although, for completeness, I note that after the hearing ended the applicant was given leave to file, amongst other things, a copy of correspondence to Sydney Water inquiring about any interest in the channel. I am not aware of any response to such inquiry and assume for present purposes that it has no interest).

24. The alignment of the 12 foot wide channel compared with the 9 foot wide channel (and the alignment of the 9 foot wide channel with an additional 3 feet with the site plan) has never been identified by the applicant. If the 9 foot wide Crown reservation is not wholly within the 12 foot wide channel, for practical purposes that Crown land ended up in lots that on the face of the Register will be alienated anyway. The subject land, outside of the 12 feet wide channel, was wholly owned by the applicant on the face of the Register at one point (although some of that land came to be incorporated into the registered strata plan and was also alienated). If within the 12 foot wide channel, the additional 3 feet was on one side or other of the 9 foot wide channel, or either side of that channel, also does not matter because such land within the 12 foot wide channel was either owned by the Crown or Boulevard Estates (Newport) Limited– whatever shape that ownership may have taken within the 12 foot wide channel.

25. In the ultimate, the Council submits that no evidence has been brought forward that is inconsistent with the Crown owning that part of the drainage channel that is not now owned by ASIC through Boulevard Estates (Newport) Limited. I accept this to be the fact and the case proceeded on that basis.

Owner’s consent from ASIC and the Crown

26. The letter dated 6 November 2015 from ASIC, in respect of that part of the drainage channel formerly owned by the now reregistered Boulevard Estates (Newport) Pty Limited has been tendered as part of Exhibit L. The statutory basis on which ASIC is the owner is set out in that correspondence. The day before the hearing the applicant also provided to the Council a letter dated 30 June 2016 from the Department of Lands purporting to give owner’s consent in respect of the Crown land occupied by the stormwater channel situated between 316 and 324 Barrenjoey Road and no 2 The Boulevard, Newport. This letter is also part of Exhibit L. A further updated letter from the Department of Industry – Lands dated 2 March 2017 was also provided to the Court as part of the applicant’s submissions in reply. The applicant relies on all of this correspondence to satisfy the requirements in cl 115(1) (h).

Finding – ASIC letter

27. I accept the applicant’s submission at paragraph [12] AWSR that ASIC’s letter of 6 November 2016 in Exhibit L is owners consent for the purposes of cl 115(1) (h) of the Regulations. Not only does the letter explain that ASIC owns part of the channel land by operation of s 601AD of the Corporations Act 2001, whereby the property of a deregistered company (such as Boulevard Estates (Newport) Pty Limited ACN607 694 342 vests in ASIC) but it also states in no uncertain terms that “ASIC has no objection to the lodgement of the Modification Application”. In my considered opinion nothing more is needed from ASIC to satisfy cl 115(1) (h) of the Regulations for present purposes.

Owner’s consent from the Crown dated 30 June 2017

28. The Council contends that the correspondence from the Crown dated 30 June 2016 within Exhibit L, relied upon by the applicant as owner’s consent, only “purports” to give owner’s consent. The Council has formed this view because the correspondence from the Crown is conditional upon a number of matters, including matters that cannot be satisfied until after consent to the application the subject of the proceedings is granted.

29. According to the Council the letter lists 8 conditions which are in fact preconditions to consent. Consequently, the letter is qualified, and as such, this presents a jurisdictional impediment to my dealing with this matter. The Council submits that the Regulations require that an application for modification must have “a statement signed by the owner of the land to the effect that the owner consents to the making of the application”. In this case the Council submits that a consent that is not operative until the happening of future events is not a consent at all: Mulyan Pty Ltd v Cowra Shire Council and Anor [1999] NSWLEC 212; (1999) 105 LGERA 26 at [33] per Lloyd J. In fact, the Council believes that the terms of the letter from the Crown in this case are not materially different from the conditional consent reviewed in Mulyan which was found to be inadequate at [17]. In this case, the Crown’s letter is issued “subject to” the following conditions that include matters that will not be satisfied until sometime in the future, namely:

1. Consent is given without prejudice so that consideration of the proposed development may proceed under the EPA Act 1979 and any other relevant legislation; …

2. (3) Registration, within 12 months of the commencement date of the said Licence [which is stated to commence on 29 June 2016 in condition 2], of an easement for access over the Crown land concerned. The transaction of an easement will be subject to the payment of compensation, and such other conditions as may be determined;

3. (4) Preparation and subsequent registration of a plan of survey, to permit the creation of first title over the subject Crown land;

4. (5) A final Occupation Certificate is not to be issued for the building erected at 316 – 329 Barrenjoey Road until the requisite easement for access has been registered on the land title created in accordance with these conditions of landowner’s consent; …

30. The Council submits that Conditions 3 and 4 of the Crown’s letter (set out above) are likely to be satisfied only after consent is granted. And, while it concedes that there is no impediment to the conditions being satisfied before consent is granted, the Council submits that it is not apparent why these steps would be taken until this consent is assured. In any event, it submits that no evidence has been supplied that these conditions have been satisfied. Whereas, Condition 5 is one that can clearly only be satisfied after consent has been issue. If a final Occupation Certificate were issued before the specified easement is registered on title (regardless of what the conditions of consent might say – which are irrelevant to the “conditions” of owner’s consent – the owner’s consent conditions as drafted cannot be satisfied by inclusion of a condition in the modified approval) then the conditions of owners consent are not satisfied.

30. The Council also submits at paragraphs [43] – [47] of CWS:

“What if the applicant does not satisfy the conditions described by the Minister in this case? On the proper construction of the letters in this case there is to be no owner’s consent if those conditions are not satisfied – but whether those conditions are satisfied (likely in the case of condition 3 and 4, and definitely in the case of 5) that cannot be known until after the development consent is issued. The development consent cannot somehow be revoked after consent is granted if these conditions are not satisfied for want of owner’s consent – the correct position (consistently with Lloyd J’s reasoning) is that either there is owner’s consent at the time the modification is approved or there is not – and if there are matters that are not to be satisfied into the future to which the consent is subject, there is no consent.

The general admonition that “consent is given without prejudice so that consideration of the proposed development may proceed…”Does not change the proper construction of the letter that owners consent is subject to the stated conditions and so there is no owners consent until those conditions are not satisfied. For there to be any consent at all, those conditions must be satisfied by the time the consent authority makes this decision.

Moreover, by requiring owners consent the EPA Act and Regulation did not intend to give the owner a further measure of control, as a matter of title, over development, beyond that given by the law relating to trespass, leases, licences, contracts and estoppel. The EPA Act’s objects are concerned with planning and not title to land. This is not to take away the fact that owners consent is an effective power of veto over development, as this is been recognised by the High Court (North Sydney Council v Ligon 302 Pty Ltd (1996)185 CLR 470 at 477) - but the Court in the same judgement also recognised that owners consent was not concerned with private property rights. The need for owners consent was not dependent on the proprietary or contractual rights of the proponent because the objects of the EPA Act involve the environment and amenity; it is intended to provide statutory powers to control planning that are not qualified by private rights (Ligon 302 at 475-476).

In these respects, it is not apparent that an owner’s consent was intended to be given subject to conditions the purpose of which was to give the landowner (the Crown in this case) controls concerning its ownership of the land, in any event. Plainly conditions 3, 4 and 5 to which owner’s consent is made “subject” are conditions directed to property title issues. If there were property issues to resolve, they could have been resolved separately and not as qualifications to which owners consent was “subject”.

32. For above reasons, the Council’s case is that there is no proper application in accord with cl 115(1) (h) – no owner’s consent from the Crown. Moreover, if no such consent is forthcoming before the Court’s decision, the proposal must be refused for want of jurisdiction.

33. The applicant takes an entirely different view. It submits that the correspondence dated 30 June 2016 says that “consent is granted by the Minister … to modify Development Consent No 238/13 granted by the Land and Environment Court.” Therefore, the correspondence clearly consents to lodgement of this application. Nothing could be clearer, particularly in circumstances where the correspondence also states on the following page that “this letter should be submitted to the Land and Environmental Court and any other authority in conjunction with the development application and /or such other approval as may be required”.

34. While the scope of the correspondence from the Crown goes beyond the simple consent required by cl 115 (10 (h), the applicant submits that nonetheless at the very least it satisfies the Regulation. Moreover, the 8 conditions imposed on the consent clearly relate to the ability to use the land in the event that the Court grants the modification. In Muylan the statement provided by the proponent to the Council was a letter written by the owner (though not signed) to the proponent explaining that in the event that the Equity Court finds in favour of the proponent (which on its legal advice the owner did not expect) the owner hereby gives its consent to that DA only on the basis set out in this letter. In that context in dealing with a development application Lloyd J found as a matter of fact that the letter relied upon as owner’s consent was simply not a statement that the owner consented to the making of the application (at [17]) - as required by s77 (1) of the EPA Act at that time. His Honour characterised the consent as being “conditional” in the sense of being a “condition precedent to the making of the development application”. The applicant submits that Muylan does not authorise owners of land to create complex, conditional statements of owner’s consent that require a consent authority to engage in analysing and construing them before proceeding to an environmental assessment of an application: at [17] AWS. The correct legal position, according to the applicant is as set out by Craig J in Rothwell (as applied in Botany Bay City Council v Minister for Planning and Infrastructure & Ors [2015] NSWLEC 12).

35. It is the case that aspects of the letter from the Crown in this case relate to property rights - as between the parties, and this quite clearly influences the applicant’s ability to use the land if and when consent has been granted. However, cl115 (like cl 50 of the Regulations in respect of owner’s consent for a development application) is not concerned with the legal relationship where landowners allow use of land by others. As Craig J said at [39] “the consequence would be that the terms in which a landowner’s consent is given to the making of a development application impinge upon the exercise of the statutory discretion afforded by the EPA Act to a consent authority when determining that development application. This is a significant consequence. It is not one countenanced by the provisions of the Act” Rothwell at [40].

Finding – The Crown’s letter dated 30 June 2016

36. Clause 115(10 (h) of the Regulations provides that an application for modification under s96 (2) of the EPA Act must have “…a statement signed by the owner of the land to the effect that the owner consents to the making of the application”.

37. For the reasons outlined by the applicant I am satisfied that the letter dated 30 June 2016 (and subsequent correspondence) from the Crown in Exhibit L satisfy cl115 (1) (h), and that there is no legal impediment to me dealing with this application on that basis. Clause 115 (1) (h) does not govern an applicant’s legal ability to use the other person’s land into the future. Those are matters that do not concern the consent authority. And, while the letter from the Crown states that the applicant’s ability to use the Crown land in the future is subject to future conditions this does not negate the consent given for the lodgement of the application under review.

38. In my opinion the correspondence from the Crown dated 30 June 2016 comprising part of exhibit L is in the clearest terms. The letter states that “consent is granted by the Minister… To modify development consent number 238/13 granted by the Land and Environment Court”. Moreover, that “this letter should be submitted to the land and environment court and any other authority in conjunction with the development application and/or such other approval may be required.”

39. In my assessment the words fall within the Regulation. The lodgement of the application is not conditional under the terms of the letter what is conditional is the use of the land into the future, unless the conditions are satisfied.

40. Accordingly, I am satisfied for present purposes that all relevant owners’ consents have been given for the lodgement of this application under s 96(2) the EPA Act, and that there is no jurisdictional impediment to me deciding this matter for want of owner’s consent to the lodgement of the application as required by the Regulations.

The modified development is not substantially the same

41. The second jurisdictional issue concerns s 96(2) (a) of the EPA. The section provides:

(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

…

42. Put simply, the section requires the Court to be satisfied as a matter of fact that the development as modified is substantially the same development as that originally approved before the modification power becomes available: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 at [54] per Bignold J. That is satisfaction about the matters raised by s96 (2) (a) is a jurisdictional prerequisite to my dealing with this appeal.

43. The legal principles applying to the “substantially the same development” test as summarised in Agricultural Equity Investments Pty Ltd v Westlime Pty Limited (No 3) [2015] NSW LEC 75 per Pepper J at [173] are relevant in my assessment of this matter. The relevant part of the judgment is set out below.

Legal Principles Governing the Power to Modify in s 96(2) of the EPAA

44. 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]).

45. In undertaking the comparative exercise the section by its terms provides that the Court must ignore subsequent modifications to the original DA. Relevantly, for present purposes the Regulations also require that in undertaking the comparative assessment that any modification made by the construction certificate plans (which normally under s 80(12) of the EPA Act are taken to form part of the relevant development consent) are not relevant for the purposes of s 96(2)(a). In other words, the Court granted development consent, as modified by the construction certificate issued by the private certifier in this case, do not form part of the original development consent for the purpose of assessing this modification application.

46. To make it plain the comparison to be made then is to consider whether the development as modified (incorporating the changes outlined in in Exhibit C and Exhibit 17) is “substantially the same development” as that originally granted by the Court (Exhibit 12 Tab 1).

The council’s position - substantially the same issue

47. In undertaking the comparative exercise required by s 96(2)(a) the Council submits that the key features of the modification application in this case and, where relevant, their planning impacts are:

1. moving the sole vehicle access and driveway so that all vehicular traffic will access the development from the new street, in circumstances where the new street is subject to greater flooding hazards and comprises a leafy neighbourhood setting rather than a main road;

2. the visual impact of loss of vegetation associated with the modified planter (and its context) near the entrance to lobby 1 (the role of which planter, Mr Dickson, considered was “critical” to that element of the building) area, the visual appearance of the driveway and view into the car park in the context of The Boulevard, and the proposal to remove or substitute integrated planters;

3. the addition of balconies to what was previously a non-trafficable area between the proposal and the residential flat building to the south-east, with consequential privacy and noise impacts for the residents in the adjacent building;

4. expansion of the development to new land (the drainage channel) necessitating fresh owner’s consents for that site, and the attendant considerations associated with building over new land (in particular, the unknown impacts of having 2 bridges over the channel where there were to be none in the Court approved development); and

5. the sheer number of amendments that are opposed by Council based on amenity impacts, which amendments in their impacts (which impacts of course goes to the “quality” of the amendments) as addressed in respect of individual contentions of the balance of the CWS submissions (leaving aside contentions that do not involve amenity impacts such as inconsistency between plans).

48. It is the Council’s case that the combination of these factors, or indeed any one of them, provides a factual basis for a further factual finding by the Court that the proposal is not “substantially the same” within the meaning of s 96 (2) (a), and so the modification power is not available in this case.

Flooding impacts

49. The Council relies on the flood evidence given by Ms Collier to support its case that the development is not substantially the same. Her evidence includes a written statement of evidence (Exhibit 16), the joint report prepared with Mr Bewsher (Exhibit E) and that given orally at the hearing.

50. By way of background I note that Ms Collier was involved in undertaking the Newport Beach Flood Study (Lawson & Treloar 2002) (the 2002 Study), which is the most recent flood study adopted by the Council. Moreover, the 2002 Study underpins the identification of the site and its surrounds as flood prone and all design levels for the Newport Beach Floodplain have been derived from the results of this study.

51. Since adopting the 2002 Study the Council has also commissioned a study of overland flows for the local government area (LGA) using two dimensional modelling (Cardno 2013). The overland flow information was used to inform the Pittwater LGA Flood Risk to Life Classification Study (Cardno 2015). The (Cardno 2015) study was undertaken to ascertain the level of risk to life from flooding across the whole LGA.

52. Both flood experts accept that area surrounding the site is classified mostly as “high hazard flood storage” and the drainage channel through the site is classified as “high Hazard floodway” (SMEC 2004). As Ms Collier explained in her statement of evidence the Newport Flood Plain discharges into the Newport Beach. Flows in excess of the underground culvert capacity discharging to the ocean are controlled by the height of the coastal dune adjacent to the Newport Beach Surf Club and are likely to back up behind the sand dune. However, in the early stages of any flood event the areas surrounding the drainage channel are the most likely to behave as a floodway as they convey flows to the outlet. The open channel commences upstream of the site - across the road in the Newport Bowling Club. Flood flows are conveyed in the open channel and when this channel is at capacity flows are conveyed along Barrenjoey Road, other adjacent roads and though properties. Portions of the site are inundated in the 5 year ADI event.

53. The Council adopted a resolution on 1 November 2010 indicating that a development application would be assessed with the consideration of the potential effects of climate change (being 30% increase in rainfall intensity and a provision of sea level rise of 0.9m). By way of background only I note that these design level were supplied to the applicant prior to the original DA being submitted.

54. The first contention raised by the Council relates to unacceptable risk to life and impact on flooding. With respect to this matter Ms Collier is of the opinion that in the event of a flood if persons were to leave the site via the proposed driveway across the open drain they would be driving or walking into areas that are very hazardous. The area that is proposed to be used for vehicles to access /leave the development is deemed as unsafe for vehicles and people by the Australian Government’s best practice guidelines using the hazard threshold classifications. The proposed vehicle access to/from the site is over areas identified as H6 and H5 hazard classification (Pittwater LGA Flood Risk to Life Classification Study 2015).

55. By locating the proposed vehicle access point within both an H5 and H6 hazard classification the experts agree that the risks to life are increased unless satisfactory safety measures are put in place. In this instance, Ms Collier is critical of the extent of the applicant’s assessment of the flood impacts generated by the new driveway and the measures proposed to address the increased risk to life and property. For example, there has been no satisfactory assessment of the impact of the new bridge across the drainage channel (and the retained southern bridge deck) on the flow of flood water in the channel (Exhibit 16 pp12, 13 at Para 4). She is also critical of the height of the proposed driveway/ bridge. Ms Collier believes that it needs to be set at or above the flood planning level or at the 100 year ARI level plus climate change rather than at the PMF. In recommending this increase in height she concedes that raising the bridge is problematic. That is, if a bridge were to be installed with a design that connects to the building and the existing road network then an assessment of the impact of that bridge and its approaches on the flood levels (including the potential for blockage by handrails) would be essential as the bridge lies within the floodway under both existing and projected climate change conditions. Given the inadequate assessment undertaken by the applicant Ms Collier is not satisfied that the increased risk to life generated by the relocation of the driveway is understood or appropriately managed.

49. There is no dispute between the experts that there is a variance in the life hazard between the existing driveway and that proposed in the Boulevard. However, based on the current application the risk to life is to a lesser extent with the existing vehicular exist at the peak of the PMF event along Barrenjoey Road. Ms Collier is concerned that people ignoring the flood risk at the Boulevard exist will be proceeding directly into more dangerous waters. And, while the installation of a boom gate and extra signage to stop vehicles at that access point during a flood is recommended by Ms Collier the Council believes it raises other issues. It submits that the use of a boom gate assumes it is working and functional however, if it malfunctions then the driver of a vehicle may well think the area is safe to drive through or if the boom gate closes then a vehicle may be stranded in the floodwater and precluded from gaining access and refuge in the development. The Council also submits that there is no guarantee that a person standing (or about to drive from) the edge of the flood waters on the Boulevard will be able to appreciate the depth or velocity of the water which will be deeper that Barrenjoey Road. Moreover, pedestrians can obviously get around any boom gate, and as Ms Collier states in her evidence studies demonstrate that people walk and drive into floodwaters irrespective of signage (Exhibit 10).

50. According to Ms Collier the flood hazard classifications assume a probable maximum flood, whereas in much more likely floods Barrenjoey Road may not present any flood hazard at all whereas the Boulevard access will still be hazardous. In a 1 in 100 year flood, Barrenjoey Road is only a low hazard area. Whereas in a 1 in 100 year flood the Boulevard is still high hazard. In a 1 in 5 year flood event the Boulevard still presents a risk to life immediately upon driving into the Boulevard, whereas it is possible to drive onto Barrenjoey Road without immediate risk and return to safety.

51. In Ms Collier’s opinion if you compare a person attempting to cross H4 zone water for a 1 in 5 year flood at the Boulevard with a person at the intersection with Seaview and Barrenjoey Road they would not be in a superior position to assess the H4 flood water. Both at that point would be at the same level of risk. However, the real issue is that a person ignoring the flood risk at the Boulevard exist will proceed directly into more dangerous waters at H5 and H6 zone. It is also the case that someone trying to enter the development car park during a flood would be relatively safer once they get to the same block on Barrenjoey Road whereas a person attempting to enter the development from the Boulevard would be presented with dangerous flood waters all the way up to the commencement of the bridge over the drainage channel – and in the PMF the bridge of the drainage channel would be wholly submerged – those waters being H6 classification and thereby higher risk.

52. Based on the expert evidence of Ms Collier about the increased flood levels and the unacceptable risk to life generated by the relocation of the vehicle access to the Boulevard the Council submits, after a qualitative and quantitative assessment of the before and after, that the Court will not be satisfied that the development as modified is substantially the same as that approved by the Court. In short, the development will not have the same essence or materially in terms of potential for flood impacts and risk to life if one is to leave the building in a vehicle or on foot in flood events from the Boulevard access. Therefore, the Council submits that the Court’s jurisdiction is not enlivened on the facts of this case under s96 (2) (a) of the EPA Act.

The Applicant’s position – substantially the same issue

60. In response to the Council’s assertion that the development is not substantially the same at CWS at [48] to [69] – (dealing with the modification power under s 96(2) (a)) - the Applicant outlines a number of submissions at [60] - [73] AWS, and at [5] – [6] AWSR.

61. First, the applicant accepts that the legal principles to be applied when undertaking the comparative exercise mandated by s 96(2) (a) of the EPA Act are conveniently summarized in Agricultural Equity Investments at [176]; and, that the starting point is the original DA not the CC plans.

62. The applicant also submits, quite properly that the comparative exercise does not invite a counting of the number of changes in order to determine whether the modified development is substantially the same as that approved by the Court (AWS at [71]). Rather, the comparative test is both qualitative and quantitative: Moto [52]. In undertaking the comparison of the before and after it agrees with the Council that I must consider the impacts of the before and after from both a qualitative and quantitative perspective in order to determine if they are substantially the same development.

Flooding impacts

63. With respect to locating the access way from The Boulevard - in a higher hazard floodway – (noted as H6 and H5 on the flood map) the applicant contends on the expert evidence of Mr Bewsher that the proposal before the Court adequately deals with the increased risk to life placed upon people in the development and leaving the site. It describes it as a safer alternative.

64. Generally speaking, Mr Bewsher supports the Boulevard access point on two bases:

1. because the Boulevard is more dangerous people will see the floodwaters there are dangerous and will be less likely to put themselves at risk by driving into these waters whereas they might get a false sense of security from Barrenjoey Road; and

2. even if they attempt to evacuate via Barrenjoey Road they will still ultimately (albeit further away) have to cross high hazard areas to get to an area outside of the flood activity.

65. According to Mr Bewsher the vehicle access onto The Boulevard is associated with deeper water at the property boundary; not an increase in hazard (relative to access via Barrenjoey Road) or unsafe or unacceptable conditions at the development site (p1 Exhibit E).

66. Mr Bewsher’s evidence did not change for a 1 in 5 year flood event despite accepting that the water level on The Boulevard at kerb will be half a metre higher than the water at Barrenjoey Road curb side. And, that during such a flood event the Barrenjoey Road would have a H1 or 2H life hazard classification and The Boulevard road area would have a H4 life hazard classification. (A H1 life hazard classification means “no restrictions” and a H2 life hazard classification means “unsafe for small vehicles” - while a H4 life hazard classification means “unsafe for people and persons and vehicles” (Exhibit 16 Figure 6-1 Combined Flood Hazard Curves).

67. According to Mr Bewsher the Boulevard entry and exit will be safer than the approved access point on Barrenjoey Road in a five year flood event. The reason for this, he explained is that in a 1 in 5 five year event people leaving the site by the Barrenjoey Road will only travel for a few seconds before they reach a higher grade flood level and run into risk. Whereas, people will observe from the exit of the Boulevard the water level and remain on the site. Mr Bewsher is satisfied that the proposed signage and alarms will ensure that people remain on the site in the event of flooding. He did not support the installation of the boom gate as offered by the applicant to satisfy Ms Collier.

68. The applicant submits, on the evidence of Mr Bewsher that the concern about flooding is largely resolved and that this issue would be no basis to consider that the development is not substantially the same (it will have the same essence or materiality in terms of potential for flood impact if one is to leave the building in a vehicle in flood events (AWSR at [5]).

Consideration – substantially the same development – flooding

69. As the Council submits this application began largely as one to move the driveway and vehicular access from Barrenjoey Road to the Boulevard. The 140 other modifications detailed in Exhibits C and 17 - now caught up in the amended application, are an attempt to address the as built structure and the Council’s concerns in respect of the development.

70. For the purpose of carrying out the comparative exercise mandated by s 96(2) (a) I am not concerned (in this instance) by the number of changes proposed to the development Moto: at [52]. Rather, I need to compare holistically the development as modified with the Court approved development in order to determine whether there is a material or essential change to the development such that the development is no longer substantially the same. In saying this I accept that a comparison of the use before and after (“shop top housing” and “shop top housing”) does not get me very far. If approved, the modified version of the development has an extra shop and a driveway in a new street. On one view the development remains shop top housing. However, such a description of the development does not incorporate the required qualitative comparison of the Court approved development with the development after modification. When I consider the before and after from both perspectives (a qualitative and quantitative assessment) on the flooding evidence alone it is my view that there will be a material change to the essence of the development.

71. For the reasons outlined by Ms Colliers I am of the opinion that the development as approved by the Court is a much safer development then the development after modification. The evidence is that the relocation of the driveway into a higher hazard flood area does present a greater risk to life for the visitors, tenants and occupiers of the development than that approved by the Court. Given the limitations of the applicant’s investigations of the impact of the two bridges on the drainage channel, and the other matters raised by Ms Collier I cannot accept Mr Bewsher’s assessment that the development as proposed adequately addresses the increased risk to life associated with the higher hazard flood area. I simply do not know the extent of the impacts on the available evidence.

72. Ms Collier is of the opinion that the inclusion of a boom gate at the top of the driveway linked to the flood alarm warning system together with a sign stating “do not leave site when water is on the road” together with the draft flood emergency plan (version 8) does not ensure the same level of safety for the vehicles and people as the development approved by the Court. I accept her expert assessment given her intimate understanding of the flood impacts for site and the LGA based on her involvement with the flood study which underpins the risk to life hazard classifications for the LGA. While I appreciate Mr Bewsher’s extensive flood experience and expertise he was not involved in this LGA flood study and therefore cannot be expected to have as intimate knowledge of the flood impacts for this site.

73. In reaching the conclusion that the before and after are not substantially the same I have taken into account the agreed position of the flood experts that the Boulevard presents risk to life immediately upon driving into the Boulevard, whereas it is possible to drive into Barrenjoey Road without immediate risk. And, that in a 1 in 5 year flood the water level on the Boulevard with is ½ a metre higher than Barrenjoey Road water level.

74. Mr Bewsher believes that the Boulevard is safer because people will perceive the higher water and stay on the site. However, I do not accept Mr Bewsher’s evidence as reasonable. While I understand that a vehicle leaving the site from either driveway location will inevitable end up in a H6 and H5 hazard classification there is no guarantee that a person standing at or about to drive out from the development (particularly visitors to the site) from the edge of the flood waters on the Boulevard will be able to appreciate the depth and velocity of the flood water - which on the evidence will be deeper and faster - any better than they could on Barrenjoey Road. As Ms Collier states Mr Bewsher’s view of human behaviour in a flood environment is contrary to recent studies and the identified risk that people drive into floodwaters regardless - including that signage is ineffective (Exhibit 10).

75. The evidence is that the flood hazard classifications assume a probable maximum flood, whereas in much more likely floods Barrenjoey Road may not present any flood hazard when compared to the Boulevard. In a 1 in 100 year flood, Barrenjoey Road is only in low hazard area. Whereas in a 1 in 100 year flood the Boulevard is high hazard (as per the mapping in the Floodplain Risk Management Study and Plan, SMEC 2004). And, where the water rises in a more extreme event Ms Collier is also concerned that the proposed bridge (which is lower than the PMF) will form an obstruction to the flood flows from all events where the flood levels exceed the level of the underside of the bridge (Exhibit E p5). She is concerned that here has been no explicit consideration of the two bridges in the 2002 Flood Study and therefore an assessment of the impact of the application has not been adequate. Mr Bewsher dismisses the need for an assessment of the impact of the proposed bridge and the existing southern bridge deck on the basis that they are minor structures which the Council’s studies to date have ignored and they were not recommended for removal within the Newport Beach Floodplain Risk Management Study and Plan (SMEC, February 2004).

76. While that may be the fact the Court approved consent condition required the removal of the concrete access ramps across the drainage channel. Presumably, as Ms Collier states in the joint report “to reduce potential obstructions across the drainage channel which can block and cause localised elevations of floodwaters” (Exhibit E p6 2f). As it presently stands the application retains the southern bridge deck and introducers a wider new bridge over the drainage channel. I have no satisfactory evidence about the extent of the impact, if any, by this modification to the Court approved design in the event of a flood. It may be negligible but I simply do not know. Ms Collier is also concerned that the draft flood emergency response plan has not been finalised for the purposes of assessing this application – I share her concern and think that it is entirely reasonable to have the final flood emergency plan available at the time of assessment in circumstances where there is an increased risk to life.

Conclusion

77. For the reasons stated I am not satisfied that the development after modification will be substantially the same as required by s 96(2) (a) of the EPA Act. I have formed this view following a qualitative and quantitative analysis of the original consent before and after modification. In short I am of the opinion that the essence of the development will be radically transformed. While it will remain a shop top housing development with an attached dual occupancy as originally approved albeit with a different driveway entry, an additional shop and a reconfiguration of the car parking the essence will change from a safe development to a less safe development for the reasons expressed by Ms Collier as summarised above.

78. Given my determination that the development is not substantially the same I have no jurisdiction to deal with this application.

Approval of the balance of the application

79. The applicant has made the following submission:

“ If the Court accepts the Council’s contentions on flooding issue in contention 2 , it may be that the driveway cannot be relocated anyway, so probably not much turns on this ( as the balance of the application could otherwise be approved). In other words, the applicant doesn’t need to accept or reject the proposition that if the proposal did in fact create an unacceptable risk to life, as to whether it is, or is not, substantially the same. It is not conceivable that the Court would determine that there was an unacceptable risk to life, but approve it anyway, provided the test in s96 was met.

80. It appears that the applicant believes that it is open to me to approve of a part of its modification application by excising the Boulevard driveway. However, I must disagree. Having determined that the development is not substantially the same under s 96(2) (a) I do not have jurisdiction to deal with any part of the application. The flexibility afforded by s 80(4) (b) of the EPA Act to allow for the approval of part of a development application in my opinion does not extend to the approving of a part of this modification application filed under s 96(2) of the EPA Act.

81. In order to determine the jurisdictional issue raised by s 96(2) (a) the parties agreed in this case that it was necessary that the Court receive all of the evidence about flooding and planning. This happened and I have decided on the flooding evidence alone that the application does not meet the jurisdictional test in s 96(2) (a). Therefore, despite having heard all of the other evidence I cannot express any view as to the merits of the balance of the application as filed.

82. Accordingly, the Court orders that the appeal is dismissed and the exhibits are returned.

Commissioner S Dixon

Amendments

21 November 2017 - Cover sheet amended - "Northern Beaches Council' inserted to replace 'Newport City Council'.

The word "comprise" deleted from [3].

Decision last updated: 21 November 2017