Garbourg v Ku-ring-gai Council

[2022] NSWLEC 1429

Land and Environment Court

New South Wales

Medium Neutral Citation:

Garbourg v Ku-ring-gai Council [2022] NSWLEC 1429

Hearing dates:

6, 7 June 2022 and 1 July 2022

Date of orders:

16 August 2022

Decision date:

16 August 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is dismissed.

(2) Modification Application MOD0058/21 to modify Development Consent DA No 0139/20 in relation to the land described as Lot 10 DP 13482 and known as 37 Ayres Rd, St Ives is refused.

(3) All exhibits are returned with the exception of Exhibits A, B, 1 and 7, which are retained.

Catchwords:

MODIFICATION APPLICATION – residential development – whether modified development is substantially the same as development originally approved

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 6.7, 8.9, 8.10

Land and Environment Court Act 1979, ss 34, 34AA, 34C

Ku-ring-gai Local Environmental Plan 2015, cll 4.4, 4.6

Cases Cited:

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75

Arrage v Inner West Council [2019] NSWLEC 85

Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99

Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280

SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233 [2015] NSWLEC 65

Texts Cited:

Ku-ring-gai Development Control Plan 2015

Category:

Principal judgment

Parties:

Ran Garbourg (Applicant)
Ku-ring-gai Council (Respondent)

Representation:

Counsel:
J Reid (Applicant)
Dr J Smith (Respondent)

Solicitors
Mills Oakley (Applicant)
Wilshire Webb (Respondent)

File Number(s):

22/44157

Publication restriction:

Nil

Judgment

1. COMMISSIONER: The Applicant appeals from the Council’s refusal of modification application MOD0058/21 (Modification Application) to modify development consent DA 0139/20 granted by the Council on 16 October 2020 (the Consent) in relation to the land comprising Lot 10 DP 13482 and known as 37 Ayres Rd, St Ives (the Site).

2. The Consent authorised the erection of a new dwelling house and swimming pool on the Site. The construction of the dwelling house is well advanced.

The modification application

3. The Modification Application seeks approval to modify the consent in the following ways:

1. Changes to the lower ground floor level including the closure of the garage forecourt, change of use and re-configuration of the sub-floor and plant room, introduction of a vehicle turntable, relocation of the laundry, introduction of a home office and additional bedroom, enlargement of the rumpus room;

2. Changes to the ground level of the dwelling including the enlargement of the previously approved rumpus room and introduction of a new pantry (previously a laundry);

3. Removal of a gable window from the south (street facing) elevation of the dwelling;

4. Replacement of a previously unspecified solid roof with a concrete slab along the east elevation; and

5. Provision of a plenum to the west of the garage and plant room.

The site and its surrounds

4. The Site is a regular shaped allotment and has a frontage of 18.5 m and a depth of 61 m. It is approximately 960.6 m² in area. The Site falls from the street frontage to the rear northern corner.

5. The Site is located within Zone R2 - Low Density Residential under the Ku-ring-gai Local Environmental Plan 2015 (LEP). Development for the purposes of a dwelling house is permissible with development consent on land within that zone.

6. Nearby properties contain a mix of single and two storey dwellings of varying architectural styles and a new two storey dwelling house is currently in the course of construction on the adjoining property at 39 Ayres Rd.

The Council’s actions

7. The Modification Application was publicly notified for a period of 14 days between 16 and 30 April 2021. The Council received one submission which raised concerns about building bulk, overshadowing, privacy impacts, the size of the water tank and architectural articulation.

8. The Council refused the Modification Application on 23 June 2021 for the following reasons:

1. The proposed modifications will transform the development in a manner that is not considered to be substantially the same development as that originally approved.

2. The proposed modifications will result in a development that is of an excessive visual bulk and scale impact to the adjacent residential properties and the streetscape.

3. Approval of the application does not serve the public interest as it would result in an adverse outcome.

The appeal

9. The Applicant appeals from the Council’s determination pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act). The appeal was commenced on 15 February 2022, within the time required by s 8.10 of the EPA Act. The appeal is an appeal in Class 1 of the Court’s jurisdiction. In exercising the functions of the consent authority on the appeal, the Court has the power to determine the DA pursuant to s 4.55(2) of the EPA Act.

10. The Court arranged a conciliation conference between the parties, pursuant to ss 34AA(2)(a) and 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 6 June 2022. I presided over the conciliation conference. When the parties were unable to reach an agreement to resolve the dispute, I terminated the conciliation conference and proceeded to hear the matter. The hearing took place on 6 and 7 June and 1 July 2022.

11. On 3 May 2022 a Council officer conducted an inspection of the Site and observed that a number of works the subject of the Modification Application had already been carried out. These include:

1. The enclosure of the approved outdoor driveway area and incorporation into the garage;

2. The reconfiguration of internal spaces including the addition of a bathroom, bedroom and home office;

3. The relocation of the laundry from the kitchen to the basement level adjacent to the lift; and

4. The addition of access to the previously inaccessible under croft.

12. Following this inspection, the Council sought and, on 18 May 2022, was granted leave to amend its statement of facts and contentions to reflect the fact that some of the works the subject of the Modification Application had already been completed. The Council filed an Amended Statement of Facts and Contentions on 19 May 2022 (Ex 1) which contends that the Modification should be refused on the following grounds:

1. The development to which the Consent as modified relates is not substantially the same as the development for which consent was originally granted.

2. The proposed modifications will result in a development that is of excessive visual bulk and scale when viewed from adjacent residential properties and the streetscape.

3. The approval of the Modification Application is contrary to the public interest.

4. The modifications proposed by the Modification Application have already been undertaken and no power exists to retrospectively approve such works.

13. The fact that some of the works the subject of the Modification Application have already been carried out is, of course, neither a bar to the power of the Court to modify the Consent under s 4.55(2) of the EPA Act nor a relevant factor by itself in determining whether to exercise that power: Jonah Pty Limited v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 at [33]. In determining the appeal, I have therefore disregarded the fact that some of the works the subject of the Modification Application have already been carried out.

14. On 26 May 2022 an application for a building information certificate under Div 6.7 of the EPA Act was made on behalf of the Applicant. That application had not been determined when the appeal came on for hearing.

15. In the course of tendering the applicant's documentary evidence, the Applicant tendered a revised set of architectural plans (Ex B, tab 2) which identify the proposed building work in purple, the building work that is already completed (and is subject to the application for a building information certificate) in blue and the approved building fabric in black. These plans respond to some extent to the Council’s amended contentions, which sought the provision of “as built” or “works as executed” plans to identify the works that have been completed on the Site.

16. The Applicant also sought to tender material relating to the structural adequacy of the works that have been completed and I admitted this material into evidence on the basis that the structural adequacy of the already completed building work may be relevant to whether the Consent should be modified to permit the use of those parts of the building for residential purposes. The Council initially opposed the tender but I admitted the plans into evidence (Ex D) subject to the Council being given an opportunity to further amend its statement of facts and contentions, if it felt it necessary to do so, to raise any additional contention flowing from the fact that some works the subject of the modification application had already been completed. A consequence of this was that it was not possible to complete the hearing within the two days allocated and on 7 June 2022 I determined, in accordance with s 34AA(3) of the LEC Act, that in the circumstances of the case it was appropriate that the proceedings not continue to be dealt with under s 34AA(2) of the LEC Act. Subsection 34AA(3) is as follows:

(3)  The Court or the Commissioner may at any time, if the Court or Commissioner thinks it appropriate in the circumstances of the case, determine that proceedings are not to be dealt with or are not to continue to be dealt with under subsection (2). A determination may be made on the motion of the Court or Commissioner or on application by the parties.

17. Pursuant to s 34AA(4) of the LEC Act, the hearing then proceeded in accordance with 34C of the LEC Act. On 7 June 2022, the proceedings were adjourned for further hearing until 1 July 2022 and the Council was granted leave to amend its statement of facts and contentions on or before 17 June 2022, limited to the raising of contentions relating to the structural adequacy of works the subject of the modification application which have already been constructed. I also directed that any additional evidence relating to any such new contentions was to be filed and served on or before 24 June 2022. I note that the Council ultimately found it unnecessary to further amend its statement of facts and contentions or to lead any evidence relating to the structural adequacy of the completed building works.

Expert evidence

18. Mr Andrew Minto (engaged by the Applicant) and Mr Stuart Ratcliff (engaged by the Council), town planning experts, conferred and prepared a joint report (Ex 7). 

19. The parties’ experts agree that, quantitatively, the proposed modification will increase the total floor area of the proposed development by some 80 m² from 358.71 m² to 438.94 m² with a resultant increase in the floor space ratio (FSR) from 0.375:1 to 0.46:1. The new FSR exceeds the maximum permissible FSR under cl 4.4 of the LEP by 22%. The experts disagree on the consequences of the increases in floor area and FSR.

20. The parties’ experts also agree that the discernible built form of the development, both when viewed from the street and from adjacent properties will remain largely unchanged as the proposed modification will take place within the ‘envelope’ of the previously approved building. Despite this, Mr Ratcliff’s evidence is that the proposed modifications “have transformed the proposal from one that is within the scope of the bulk and scale outcome sought by cl 4.4 of (the LEP) to one that notably departs from the development standard”. In his opinion, the FSR development standard provides “a threshold of the maximum built form a site may accommodate in relation to the site area…” and “any exceedance of the numerical standard can only be considered to be a breach of this threshold”. In his view this results in the development as modified not being substantially the same development as the development originally approved.

21. Mr Minto’s evidence is that from a qualitative perspective the proposed development will not result in any unreasonable or increased impacts when compared to the originally approved development. In this regard his evidence is that the proposed modifications will not result in:

1. any increase in building height;

2. any change to the perceived height, bulk and scale of the proposed development;

3. any increase in the approved building envelope of the proposed development;

4. any increased privacy impacts;

5. any increase in adverse amenity impacts upon the adjoining properties;

6. any increased overshadowing upon adjoining properties;

7. any unreasonable streetscape or character impacts;

8. any environmental impacts; or

9. any change to the approved landscape scheme for the Site.

22. Mr Ratcliff gave evidence that the building envelope of the development as originally approved “was visually substantial to start with” and, while it complied with the FSR development standard, it contained a number of measures designed “to maximise the outer ‘shell’ of the building while ensuring compliance with the FSR was not exceeded”. One of the measures referred to by Mr Ratcliff was the provision of six openings within the eastern side elevation of the dwelling’s lower ground floor level. Mr Ratcliff’s evidence is that these openings served an important function by breaking up the building mass of the proposed dwelling, especially when viewed from the adjoining property. These openings are proposed to be filled in by the Modification Application, which he says will add to the visual built form impact as viewed from the adjacent property and to a lesser extent from the street. His evidence is that the exceedance of the FSR development standard by some 22% is “demonstrative of an excessive built form”.

23. The Applicant’s expert, Mr Minto, gave evidence that, in his view, the only perceptible change between the approved and modified development relates to the distribution and treatment of openings within the eastern elevation at the lower ground floor level. He does not agree that the length of the wall has changed and says that the length of the wall remains the same as that approved, as does the alignment and articulation of the wall. While he agrees that there is a need for articulation in this wall, his evidence is that this can be provided by in-fill elements which differentiate the infills from the brickwork of the rest of the wall and that it is unnecessary to have openings in the wall to provide an appropriate level of articulation.

24. Mr Ratcliff also gave evidence that the relocation of the glazed window to increase the floor area of the rumpus room at the lower ground level, the relocation of a glazed window to increase the floor area of the rumpus room at ground floor level and the introduction of a garage door along the street facing southern elevation at the lower ground floor level also contribute to “a degradation of the building’s external articulation measures that otherwise contribute to controlling the built form impact”. While Mr Ratcliff accepts that in isolation the visual impacts associated with these changes are not likely to be highly discernible from the street or from neighbouring properties, his evidence is that they “go towards the overall built form impacts associated with the noncompliant FSR”. He says that this is problematic “as built form is generally perceivable in the context of the whole of the building as opposed to individual elements”.

25. The Applicant’s expert, Mr Minto, gave evidence that the proposed modification does not result in any change to the actual visual bulk of the development, its height or number of storeys and will result in a development that has “an appropriate visual bulk and scale impact to the adjacent residential properties and the streetscape”.

26. Mr Ratcliff also gave evidence that the proposed modification will result in a development that is inconsistent with the objective of the R2 – Low Density Residential zone to “provide for housing that is compatible with the existing environmental and built character of Ku-ring-gai”. His evidence is that the proposed development incorporates a built form the FSR of which is “notably beyond the maximum anticipated for the Site” and is therefore inconsistent with this objective. He says that there is no exceptional circumstance, constraint or unusual characteristic that would justify a departure from the FSR development standard.

27. Mr Minto’s response is that there will be no change to the building height, setbacks, site coverage or general appearance of the development and that, subject to the change he proposes to the treatment of the formerly approved wall openings, the proposed development will be compatible with the existing environmental and built character of Ku-ring-gai given that the proposal does not seek to change the height, bulk or scale of the approved development.

Jurisdictional prerequisites

28. The Modification Application indicates that the type of modification proposed is a modification in accordance with s 4.55(2) of the EPA Act. That sub-section is as follows:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

29. Section 4.55(2)(a) of the EPA Act imposes an express statutory limitation on the consent authority’s power to modify the Consent. The Consent can only be modified if the consent authority 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.

30. The applicable legal principles governing the exercise of the power contained in s 4.55(2) of the EPA Act were summarised by Pepper J in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (“Westlime”) at [173] 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]).”

31. Section 4.55(2) of the EPA Act requires the Court to form the positive opinion of satisfaction that the development as proposed to be modified is substantially the same development as the development for which consent was originally granted. In Arrage v Inner West Council [2019] NSWLEC 85 (“Arrage”) (at [27] to [28]), Preston CJ observed that in most cases the most instructive (but not the only) way to identify whether the modified development is substantially the same as the originally approved development is to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required.

The Council’s submissions

32. The Council submits that the essential elements of the approved development are:

1. The erection of a 4 bedroom dwelling house with swimming pool and garage;

2. A dwelling house that complies with the applicable height and FSR controls;

3. A dwelling house that presents to the street as a two-storey building, especially in relation to the basement garage;

4. An articulated eastern façade that breaks up what would otherwise be what the Council describes as an “unrelieved” length of wall which exceeds the maximum 12 m in control 3 of Part 4C.2 – Building Facades of the Ku-ring-gai Development Control Plan 2015.

33. The Council submits that a quantitative comparison between the approved development and the modified development produces the following results:

1. The addition of an additional bedroom making a 5 bedroom house (not 4);

2. The addition of an extra bathroom;

3. The addition of a new 26 m² home office;

4. A substantial increase in floor area (from 358.7 m² to 438,94 m²) resulting in a departure from the applicable floor space ratio development standard in the LEP by some 22%;

5. A substantially different garage with a garage door facing the street and a turntable rather than a turning circle for the manoeuvring of vehicles.

6. A change to the eastern façade so that the original openings are filled in.

34. The Council submits that there are also qualitative changes between the approved development and the development as proposed to be modified. These are that the filling in of the wall on the eastern façade produces an unrelieved length of wall which contributes to the bulk and scale of the building and that the change to the glazing on the lower ground floor will reduce the available private open space.

35. The Council relies on correspondence which passed between the Council and the Applicant prior to the granting of the Consent. This correspondence was included in the Council’s Bundle of Documents (Ex 2) at Tab 2 and may be summarised as follows:

1. On 25 May 2020 the Council wrote to the Applicant indicating that the development then proposed by the Applicant exceeded the maximum gross floor area permitted on the Site and inviting the Applicant to either redesign the development to comply with the development standard or to make a request under cl 4.6 of the LEP to vary the development standard.

2. The Applicant then provided additional FSR diagrams and, on 29 July 2020, the Council again wrote to the Applicant indicating that the size of the basement and the area dedicated to car parking and plant was considered to be excessive. The Council expressed the view that either the footprint of the basement should be reduced or the floor area of the ground or first floor reduced to reduce the overall gross floor area. The Council indicated that the excessive floor area created “a bulky dwelling… which is inconsistent with the prevailing built form character” and indicated that, in its view, “there are no reasons that could be advanced that justify a variation to the maximum area of GFA”.

3. The Applicant provided a further response to the Council’s concerns about the floor area of the development on 28 August 2020 but the Council replied on 1 September 2020 that it remained of the view that the part of the garage that was not within a basement (as defined by the LEP) needed to be included in the calculation of gross floor area. This had the consequence that the development as then proposed still exceeded the floor space ratio development standard in the LEP.

4. The Applicant then proposed an amendment to his development application on 2 September 2020. An email from the Applicant’s consultant town planner on that date explained the proposed amendment:

“In order to achieve compliance with Council’s floor space ratio controls, we have now amended the design so that the vehicle manoeuvring area is now located in an open area excluded from the definition of gross floor area.”

5. The proposed amendment was acceptable to the Council and was incorporated in the development the subject of the Consent.

36. The changes, both quantitative and qualitative, the Council argues result in the development as proposed to be modified not being substantially the same as the development originally approved.

The Applicant’s submissions

37. The Applicant submits that the development as proposed to be modified will remain substantially the same development as that originally approved. He points to the terms of the Council’s contention on this issue that the modification would convert the proposal from one that complies with the relevant development standards to one that doesn’t but stresses that the only development standard breached is the maximum FSR. While the Applicant agrees that this standard is now exceeded by some 22%, he says that this percentage does not properly capture how the increase in floor space is distributed over the Site. The Applicant also contends that s 4.55(2) constitutes a complete source of power and that the breach of the FSR control does not preclude the granting of approval to the Modification Application: SDHA Pty Ltd v Waverley Council (2015) 209 LGERA 233 [2015] NSWLEC 65 (“SDHA”) at [31]).

38. The Applicant submits that the correct approach to determining whether the development as proposed to be modified is substantially the same as the development originally approved requires a comparison between the development as currently approved and the development as proposed to be modified and that this involves an appreciation both quantitative and qualitative of the developments being compared in their proper contexts: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (at [54] to [56]) (“Moto Projects”); Westlime at [173]. The result of the comparison must be a finding that the modified development is “essentially or materially” the same as the approved development: Moto Projects at [55].

39. The Applicant says the changes between the approved and modified development may be seen in the schedule of changes contained within the Modification Application (Ex A, Tab 6). These are:

1. Line of sliding door to rumpus room moved 1.6 m south.

2. Pantry added to scullery where laundry was previously located.

3. Enclosure of the approved covered driveway area and incorporation into the garage.

4. Reconfiguration of internal spaces including the addition of a bathroom, bedroom and home office.

5. Relocation of the laundry from the kitchen to the basement level adjacent to the lift.

6. Addition of a small shoe storage area.

7. Addition of access to previously inaccessible undercroft. Undercroft to serve as plant room space.

8. Plenum to the west wall of the garage for drainage.

9. Line of sliding door to rumpus room moved 2.2 m north.

10. Addition of desk to Bedroom 4.

11. Introduction of pool plant area enclosed behind acoustically treated louvre doors.

12. Removal of triangular glazed window.

13. Concrete slab to extend over projecting window.

40. The Applicant accepts that the correspondence between the Council and the Applicant prior to the granting of the Consent (see [35] to [35(4)] above) can be considered as one of the circumstances in which the Consent was granted in accordance with Moto Projects at [56] but points out that this was not agitated by the Council in its statement of facts and contentions (Ex 1) or by its town planning expert in the joint expert report (Ex 7). The Applicant also questioned whether the correspondence included in the Council Bundle was complete (although he did not seek to supplement the correspondence tendered by the Council with any additional correspondence).

41. The Applicant was critical of what he described as the Council’s “micro-assessment” of the differences between the approved development and the development as proposed to be modified and submitted that the proper comparison is between the approved “dwelling-house with parking” and the development as proposed to be modified which, he says, remains a “dwelling-house with parking”. He argues that all of the additional floor space is contained within the existing building envelope and that, while the modified development includes an additional bedroom, a turntable instead of a turning bay in the garage area, and an office, these will be used by the occupants of the dwelling and will not change the characterisation of the development.

42. The Applicant also contends that there will be no perceptible change to the bulk of the dwelling house by the filling in of the open areas in the garage wall and says that the replacement of the voids with windows would only be apparent to someone who was specifically looking for the change. The Applicant also says that the changes proposed will have no impact on the neighbouring property at 39 Ayres Rd.

Findings on substantially the same

43. For the reasons which follow, I am not satisfied that the development as proposed to be modified is substantially the same as the development the subject of the Consent. As being so satisfied is a jurisdictional pre-requisite to my being able to approve the Modification Application, it necessarily follows that the Modification Application must be refused.

44. There was no real difference between the parties as to the approach the Court should take in making its assessment of whether the development as proposed to be modified will be substantially the same. The relevant principles were summarised by Pepper J in Westlime and Preston CJ in Arrage and are set out are set out at [30] and [31] above.

45. Those principles require that I identify and compare the material and essential features of the development as originally approved and the development as proposed to be modified in order to assess whether the modified development is substantially the same as the originally approved development. Those features are to be derived from the originally approved and the modified developments and not from the circumstances of the grant of the development consent: Arrage at [25].

46. It is in my view too simplistic to simply describe the material and essential elements of the development, both as approved and as proposed to be modified, as being a “dwelling house with parking” as the Applicant submitted. To do so carries the danger of falling into the trap Pepper J warned of in Westlime “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”. I accept the Applicant’s submission that the proposed modifications do not change the characterisation of the development as being for the purpose of a dwelling house. However, that finding does not answer the question posed by s 4.55(2)(a) of whether the modified development is substantially the same as the development originally approved. Similarly, while I accept Mr Minto’s evidence that the proposed modification will not result in “unreasonable or increased impacts” when compared with the approved development (Ex 7 at [15]), the absence of such impacts does not mean that the modified development is substantially the same as the approved development.

47. While, at the highest level of generality, the development might be described as “a dwelling house and parking”, the material or essential elements of the development in my view also include the size of the dwelling house.

48. In relation to the size of the dwelling house, I make the following observations:

1. The approved development has a floor area of 358.7 m² and complies with the FSR development standard in the LEP while the modified development will have a floor area of 438,94 m² (an increase of some 80 m²) and will exceed the FSR development standard by some 22%.

2. The approved development is a 4 bedroom house but the modified development would be a 5 bedroom house and will include a large 26 m² home office and an extra bathroom.

49. I accept the joint position of the parties’ town planning experts that the discernible built form of the development, both when viewed from the street and from adjacent properties will remain largely unchanged if the Modification Application is approved. This is because the proposed modification will take place within the ‘envelope’ of the previously approved building. Despite this, I find that the infilling of the space within the building envelope to the extent proposed by the Applicant results in a development that is not substantially the same as the development originally approved. In this regard I prefer Mr Ratcliff’s evidence that the modifications “have transformed the proposal from one that is within the scope of the bulk and scale outcome sought by cl 4.4 of (the LEP) to one that notably departs from the development standard” (Ex 7 at [21]).

50. The FSR development standard in the LEP does not directly apply to the Modification Application: SDHA at [33]. Nevertheless, it is a clear indication that the bulk and scale of dwelling houses is a material consideration for residential development in the R2 – Low Density Residential zone in the LEP. The correspondence between the Council and the Applicant prior to the granting of the Consent (summarised at [35] above) indicates that the floor space of the dwelling house was an important consideration for the Council in deciding to grant the Consent.

51. The Modification Application will increase the total floor area of the dwelling house by some 80 m² (from 358.71 m² to 438.94 m²⁾) and will result in the FSR of the development exceeding the applicable maximum in the LEP by some 22%. That increase in floor area, even though it is contained within the approved building envelope, is in my view a very substantial increase and one that I find results in the modified development not being substantially the same as the development the subject of the Consent.

Conclusion

52. As I have found that the modified development is not substantially the same as the development the subject of the Consent, the Court does not have power to approve the Modification Application and the appeal must be dismissed. 

Orders of the Court

53. The Court orders that:

1. The appeal is dismissed.

2. Modification Application MOD0058/21 to modify Development Consent DA No 0139/20 in relation to the land described as Lot 10 DP 13482 and known as 37 Ayres Rd, St Ives is refused.

3. All exhibits are returned with the exception of Exhibits A, B, 1 and 7, which are retained. 

A Bradbury

Acting Commissioner of the Court

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Decision last updated: 08 September 2022