Hatch v Georges River Council

[2024] NSWLEC 1047

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hatch v Georges River Council [2024] NSWLEC 1047

Hearing dates:

4 December 2023

Date of orders:

14 February 2024

Decision date:

14 February 2024

Jurisdiction:

Class 1

Before:

Washington AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) Modification Application number MOD2021/0193 with respect to Lots 90, 91 and 92 in DP7148 also known as 36-40 Anderson Road, Mortdale, is determined by way of refusal.

(3) All exhibits are returned except for Exhibits A, C, D, E and 12.

Catchwords:

MODIFICATION APPLICATION – child care centre – application as modified is not substantially the same – appeal dismissed

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.55, 8.9

Georges River Local Environmental Plan 2021

Cases Cited:

Arrage v Inner West Council [2019] NSWLEC 85

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

Category:

Principal judgment

Parties:

John Hatch (Applicant)
Georges River Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
H Irish (Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)
Georges River Council (Respondent)

File Number(s):

2022/354741

Publication restriction:

No

JUDGMENT

1. These Class 1 proceedings arise as a result of the refusal, by Georges River Council (the Respondent) of the application by John Hatch to modify an existing consent, 10/DA-381, for a childcare centre at 36-38 Anderson Road, Mortdale. These proceedings have been brought to Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. The modification application, MOD2021/0193 proposes alterations and additions to the existing childcare centre, which currently supports 68 children. The modification application relates to three lots which are Lots 90, 91 and 92 in DP 7148, which are respectively known as 40, 38 and 36 Anderson Road, Mortdale.

3. Specifically, the modification application requests the following:

1. To increase the approved child placement numbers from 68 to 90

2. Conversion of the existing car park at 36 Anderson Road, Mortdale to an outdoor play area

3. Demolition of existing structures at 40 Anderson Road, Mortdale (which currently does not form part of the child care centre) and construction of a two-storey enclosed car parking building to accommodate 21 car parking spaces, a car lift, mezzanine storage areas, two bathrooms, driveway and circulation space, landscaping and pedestrian access

4. Alterations and additions to the existing building at 38 Anderson Road, Mortdale by modifying the internal layout, internal play area and circulation, with a new connection to the proposed car park at 40 Anderson Road, Mortdale.

4. On 16 November 2023, prior to this hearing, leave was granted by the Court for the Applicant to amend this modification application. As a result of these amendments, the Parties jointly submit that all issues of merit have been resolved. The remaining issues in dispute in this hearing are both matters of jurisdiction of which I must be satisfied. They are:

1. Whether the application as modified will result in a development that is substantially the same as the development for which consent was originally granted (the ‘substantially the same’ test), and

2. Whether the proposed construction of the car park at 40 Anderson Road is a prohibited use.

5. Section 4.55(2)(a) of the EPA Act requires me to be satisfied:

(a)…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)

6. For the following reasons, I find that the proposed development as modified does not meet this test and will not be substantially the same as the development for which consent was originally granted. In forming this view, I have considered the joint report (Ex 2) and addendum joint reports (Exs 3 and 11) of the planning experts, and the written and oral submissions of the parties. These submissions are based on the following facts.

7. The site is situated at a zone interface. Pursuant to the Georges River Local Environmental Plan 2021 (GRLEP), the lots to the west at 38 and 40 Anderson Road are currently zoned E4 General Industrial, and the lot to the east at 36 Anderson Road is zoned R2 Low Density Residential.

8. The land use tables for these respective zones are as follows:

Zone R2   Low Density Residential

1   Objectives of zone

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To promote a high standard of urban design and built form that enhances the local character of the suburb and achieves a high level of residential amenity.

•  To provide for housing within a landscaped setting that enhances the existing environmental character of the Georges River local government area.

2   Permitted without consent

Home occupations

3   Permitted with consent

Bed and breakfast accommodation; Boat sheds; Business identification signs; Car parks; Centre-based child care facilities; Community facilities; Dual occupancies; Dwelling houses; Early education and care facilities; Educational establishments; Emergency services facilities; Environmental facilities; Environmental protection works; Group homes; Health services facilities; Home businesses; Home industries; Jetties; Oyster aquaculture; Pond-based aquaculture; Public administration buildings; Recreation areas; Respite day care centres; Roads; Secondary dwellings; Semi-detached dwellings; Seniors housing; Tank-based aquaculture

4   Prohibited

Any development not specified in item 2 or 3

Zone E4   General Industrial

1   Objectives of zone

•  To provide a range of industrial, warehouse, logistics and related land uses.

•  To ensure the efficient and viable use of land for industrial uses.

•  To minimise any adverse effect of industry on other land uses.

•  To encourage employment opportunities.

•  To enable limited non-industrial land uses that provide facilities and services to meet the needs of businesses and workers.

•  To encourage a range of uses that support the repair, reuse, recycling, remanufacturing and reprocessing of waste.

2   Permitted without consent

Nil

3   Permitted with consent

Agricultural produce industries; Depots; Freight transport facilities; Funeral homes; Garden centres; General industries; Goods repair and reuse premises; Hardware and building supplies; Industrial retail outlets; Industrial training facilities; Light industries; Local distribution premises; Neighbourhood shops; Oyster aquaculture; Take away food and drink premises; Tank-based aquaculture; Warehouse or distribution centres; Any other development not specified in item 2 or 4

4   Prohibited

Agriculture; Air transport facilities; Airstrips; Amusement centres; Boat launching ramps; Boat sheds; Business premises; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Charter and tourism boating facilities; Community facilities; Correctional centres; Early education and care facilities; Eco-tourist facilities; Educational establishments; Entertainment facilities; Exhibition homes; Exhibition villages; Extractive industries; Farm buildings; Forestry; Function centres; Health services facilities; Heavy industrial storage establishments; Heavy industries; Helipads; Highway service centres; Home businesses; Home occupations; Home occupations (sex services); Jetties; Marinas; Mooring pens; Moorings; Office premises; Open cut mining; Port facilities; Pubs; Recreation facilities (major); Registered clubs; Residential accommodation; Respite day care centres; Roadside stalls; Rural industries; Shops; Small bars; Specialised retail premises; Tourist and visitor accommodation; Water recreation structures

9. According to the dictionary of the GRLEP, “early education and care facilities” are defined as:

early education and care facility means a building or place used for the education and care of children, and includes any of the following—

(a)  a centre-based child care facility,

(b)  home-based child care,

(c)  school-based child care.

10. From this, child care centres are permitted with consent within the R2 zone (36 Anderson Road) and prohibited within the E4 zone (38 and 40 Anderson Road). Additionally, as “car parks” are not listed in item 2 or 4 of the E4 Zone land use table, by virtue of the permission granted with consent for “any other development not specified in item 2 or 4” as stated in item 3, car parks are permitted with consent in this zone. Irrespective of this, the parties are in agreement that this car park does not constitute a standalone use but is ancillary to the child care centre at 36-38 Anderson Road.

11. Despite the above, although the land at 38 Anderson Road is zoned E4, this particular lot benefits from an existing lawful use because at the time of original consent, the proposed development was permitted in both zones with the consent of Council (Ex 9, p 568). No such benefit applies to 40 Anderson Road.

12. The following built structures exist on each lot:

1. 36-38 Anderson Road – a part single, part double storey building comprising classrooms, offices and other internal areas of an existing child care centre; an outdoor play area to the north east of the site, and 10 car parking spaces to the south east of the site.

2. 40 Anderson Road – a single-storey industrial building

Does the modification application meet the ‘substantially the same’ test?

13. Both parties made written and oral submissions relevant to the question of whether the development as modified will be substantially the same as the development for which consent was originally granted. These submissions were further supported by evidence of the Town Planning experts in both joint reports and oral evidence.

14. Dr Smith, for the Applicant, submits that the proposed modification does not alter any critical element of the development to the extent that a new development application would be required for the following reasons:

1. The proposed development remains a childcare centre: no additional uses are proposed.

2. The principle building in which the child care activity is undertaken remains at 38 Anderson Road.

3. Although the quantity of children attending the centre will increase, this is not disproportionate to the base number.

4. The outdoor play area of the child care centre remains at 36 Anderson Road, but extends into an area currently used for car parking.

5. Whilst the location of the car parking changes from 36 Anderson Road to 40 Anderson Road, the new car park is an ancillary component to the existing child care centre which enables adequate car parking to continue to be provided.

6. The overall bulk and scale of the development will remain compliant with the relevant development standards indicating that the development, as modified, will remain compatible with all neighbouring sites and uses.

15. Dr Smith also submits that, on merits, the environmental impacts of the proposed development are acceptable. In support of this, the Town Planning expert for the Respondent, Stuart McDonald, submitted in evidence that he is satisfied with the appearance, height, bulk and scale of the development as modified and that there are no unacceptable amenity impacts caused by the proposed modification.

16. With reference to the findings of Preston CJ in Arrage v Inner West Council [2019] NSWLEC 85 (“Arrage”) at [28], Dr Smith submits that the comparison of the “environmental impacts, of carrying out the modified development compared to the originally approved development” is sufficient in and of itself for the Court to find that the modified development is substantially the same as the originally approved development.

17. However, despite Mr McDonald being satisfied with the environmental impacts of the proposed modifications, he does not concur with the Applicant’s conclusion as to whether the ‘substantially the same’ test is met. Mr McDonald submits that the proposed modification includes significant changes that would result in a development that is not substantially the same as the development for which consent was originally granted.

18. In support of this conclusion, Mr McDonald has undertaken a quantitative assessment which is tabulated in Ex 3 and I reproduce in part here:

Consent as originally granted	Modification	Quantitative change
2 properties 36 and 38 Anderson Rd	3 properties Addition of 40 Anderson Rd	50% increase
Land use: Child care	Land use: Child care Change of use to remove industrial	100% loss of industrial
Site area: approx. 1,365sqm	Site area: approx. 2,048.56 sqm (as stated on plans)	50% increase
60 children	90 children	50% increase
Child care workers: 10	Child care workers: 20	100% increase
Car parking spaces: 9	Car parking spaces: 21	133% increase
Vehicle movements in Anderson Rd: AM peak: 51 PM peak: 60	Vehicle movements in Anderson Rd: AM peak: 68 PM peak: 80	33% increase
Outdoor play area (including indoor “simulated space”): approx. 520sqm	Outdoor play area (including indoor “simulated space” but excluding verandah): 674.17sqm	30% increase
Max height of development on No 40 above existing ground level when viewed from the street: 3m	Max height of development on No 40 above existing ground level when viewed from the street: 6.39m	113% (increase in height)
Minimum building front setback of No 40: approx. 17m	Minimum building front setback of No 40: approx. 5.5m	67% (reduction in setback)
Acoustic barriers: nil	Acoustic barriers with footprints and roof areas of 40sqm and 85sqm and heights of 3.125m and 4.51m introduced to address increased noise impact. Additional acoustic barrier wall 2.61m in height introduced.	100% new

19. These numerical changes alone warrant consideration under s 4.55 of the EPA Act, and it is my considered opinion that the quantitative increase in attending children, staff, site area, parking numbers, vehicle movements and built form results in a substantial change to the development as approved.

20. However, with reference to Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 (“Moto Projects”) at [52], Dr Smith submits that in respect to this test, “a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be “legally flawed””.

21. In the Town Planning Joint Reports, Mr McDonald makes a qualitative assessment of the modification. He erroneously states that including a change of land use at No. 40 Anderson Road results in a significant alteration that is relevant to the ‘substantially the same’ test. I note however that both parties concur that the change of use at No. 40 is not relevant to this test, as the question relates to the changes to the development for which the consent was originally granted, not the change to any existing development consent at No. 40 Anderson Road.

22. However, Mr McDonald goes on to state with reference to the original modification application (Ex 2, pars 25-26 and 30-32) and the amended modification application (Ex 3 pars 21-22) that the introduction of a two-storey car park to the child care centre creates additional bulk, scale and traffic movements that modify the original development to such an extent that it cannot be considered substantially the same as the development for which consent was originally granted. The original development included a small, 10 space surface car park at street-level, positioned in front of the playground to the east of the child care building at 36 Anderson Road. The proposed modification will result in a two-storey car park, with 21 spaces and a car lift, that covers the entirety of the lot to the west at 40 Anderson Road. It is my considered opinion that the structure and form of the building as modified would not ‘substantially the same’ as the existing built form, either physically or numerically.

23. Adopting the reasoning of Preston CJ in Arrage [18]-[33], I concur with the assessment of Mr McDonald that the introduction of a new multi-storey car park covering the entire adjacent lot at No. 40 Anderson Road, as well as the substantial increases to the original child care centre to the number of children, staff, parking numbers, vehicle movements, and site area results in modifications to such an extent that does not meet the ‘substantially the same’ test in either qualitative and quantitative terms. I form this opinion regardless of any consideration of the resulting environmental impacts.

24. Subsequently, pursuant to the requirements of s 4.55(2)(a) of the EPA Act, I am not 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. As this state of satisfaction is necessary to meet the jurisdictional requirements of s 4.55(2)(a), the Court lacks the power to modify the development consent and accordingly, the appeal is dismissed.

25. The Court orders:

1. The appeal is dismissed.

2. Modification Application number MOD2021/0193 with respect to Lot 90, 91 and 92 in DP7148 also known as 36-40 Anderson Road, Mortdale, is determined by way of refusal.

3. All exhibits are returned except for Exhibits A, C, D, E and 12.

E Washington

Acting Commissioner of the Court

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Decision last updated: 14 February 2024