Hrsto v Ku-Ring-Gai Council

[2011] NSWLEC 1169

Land and Environment Court

New South Wales

Medium Neutral Citation:	Hrsto v Ku-Ring-Gai Council [2011] NSWLEC 1169
Hearing dates:	9 May 2011
Decision date:	09 May 2011
Jurisdiction:	Class 1
Before:	Brown C
Decision:	Appeal upheld
Catchwords:	MODIFICATION - modification of approval for demolition of all existing improvements and construction of a five-storey residential flat building - whether substantially the same development as approved development
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
Cases Cited:	Moto Projects 2 Pty Limited v North Sydney Council 1999 106 LGERA 298 Vatich Pty Limited v Penrith City Council (unreported, Land and Environment Court, 24 February 1992)
Category:	Principal judgment
Parties:	Andrew Hrsto (Applicant) Ku-Ring-Gai Council (Respondent)
Representation:	Counsel Mr C Hage, Agent (Applicant) Mr G Shapiro, Solicitor (Respondent) Solicitors Norton Rose Australia (Respondent)
File Number(s):	10884 of 2010

Judgment

1. COMMISSIONER: This is an appeal against the refusal by Ku-Ring-Gai Council (the council) of an application to modify Development Consent DA 1099/04, granted by the Court on 18 November 2005, for the demolition of all existing improvements and construction of a five-storey residential flat building at 1-1A Lamond Drive and 1444-1444A Pacific Highway, Turramurra (the site).

1. This hearing was originally conducted as a conciliation conference under s 34 of the Land and Environment Court Act 1979 and commenced on site on 14 February 2011, where the conference was adjourned to allow the parties to further discuss the contentions raised by the council. The s 34 conference was reconvened on 2 May 2011 where the conference was terminated pursuant to s 34(4) because agreement could not be reached between the parties. The parties agreed to me hearing the matter pursuant to s 34(4)(b)(i) on 9 May 2011.

1. The sole remaining contention between the parties was whether the modification application is substantially the same development as the development for which consent was originally granted.

1. The parties agreed that the original consent provided for:

• demolition of the four existing dwelling houses and associated structures,
• construction of a five-storey residential flat building comprising 51 units, being 4 x 1 bedroom units, 34 x 2 bedroom units and 13 x 3 bedroom units, and
• 102 basement car parking spaces, consisting of 89 residential spaces and 13 visitor spaces.

1. The agreed modifications are:

• an increase in the number of units from 51 to 66,
• a reduction in the number of car parking spaces from 96 to 92,
• an increase in floor area from 5304 sq m to 5520 sq m,
• an increase in floor space ratio (FSR)from1.25:1 to 1.3:1,
• a decrease in the building footprint from 2114 sq m to 1907 sq m, an increase in deep soil are and;
• a reduction in the basement volume by 500 cu m to 11,700 cu m.

1. Mr Shapiro, for the council, submits that the modification application was not substantially the same for the following reasons:

• the number of units increased from 51 to 66 with an expected increase in population from 91 persons to 106 persons. Mr Shapiro submits that this will lead to increased impacts on the amenity of neighbours, including increased overlooking and privacy impacts,
• an increase in the s 94 contribution, based on the additional population,
• a significant change to the landscaping as originally approved, and
• an increase in vehicular and pedestrian traffic, based on the increased population, particularly given the level of importance in the original approval.

1. The council accepted that the modification application satisfies the numerical requirements in Ku-Ring-Gai Town Centre Local Environmental Plan 2010 and the Ku-Ring-Gai Town Centre Development Control Plan 2010 .

1. Mr Hage, agent for the applicant, states that the modified application is substantially the same as the original approval for the following reasons:

• the proposed development is consistent with State Environmental Planning Policy No 65 - Design of Residential Flat Buildings and the Residential Flat Design Code ,
• the overall mass and volume of the development is generally the same, notwithstanding the variation in the FSR, which forms the basis of an improved internal design and amenity and overall improved internal planning,
• the impact on neighbours is generally the same or improved and there is no significant change to the relationship to adjoining properties,
• the materials proposed are generally the same,
• the roof pitch is generally the same,
• the roof ridgelines are generally the same,
• the height above natural ground level is essentially the same,
• the height in storeys in the same,
• there is no apparent or visual change to the streetscape,
• the proposed residential nature is unchanged, or in the alternative there is no significant change to the nature or intensity of the residential use,
• there is no significant change in the architectural appearance and character of the proposed development, the modulation detailing proportion and finishes remain generally the same,
• the building length and setbacks, envelope and footprint remain generally unchanged and are in accordance with the existing approval,
• the location of the car park entrance remains the same, and
• the location, scale, size, shape and appearance of the proposed development is generally and essentially remain the same, creating minimal environmental impacts.

1. In considering the competing submissions, and the range of authorities provided by both parties, I am satisfied that the question to be answered on whether "the development to which the consent as modified is substantially the same development as the development for which consent was originally granted and before that consent as originally granted, if at all" is properly and adequately addressed through two well established cases.

1. Stein J in Vatich Pty Limited v Penrith City Council (unreported, Land and Environment Court, 24 February 1992) , said as to the meaning of the words "substantially the same development", when dealing with s 102 of the Environmental Planning and Assessment Act 1979 (the relevant section at that time for modification applications) that:

Turning to the issue of s 102(1)(a). Is the proposed modification development substantially the same as that in the development consent (as already amended)? In my opinion substantially when used in the section means essentially or materially or having the same essence.

1. The scope of consideration of such application was described by Bignold J in Moto Projects 2 Pty Limited v North Sydney Council 1999 106 LGERA 298 at p 309 as follows:

55. The requisite factual finding obviously requires a comparison between the development as currently approved and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is 'essentially or materially' the same as the currently approved development.

56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified, where that comparative exercise is undertaken in some type of sterile vacuum, rather the comparison involves an appreciation, qualitative as well as quantitative, of the development being compared in their proper context (including the circumstances in which the development consent was granted).

1. If Vatich and Moto Projects are used as a basis for the assessment of the modification application, I am satisfied that the proposed modification is substantially the same for a number of reasons.

1. Qualitatively, there is little change to the appearance of the proposed building. While Mr Shapiro raised the question of the new landscaping scheme, I do not consider that the change to the form of landscaping, given that it will occupy the same area, could not be regarded as being "essentially or materially or having the same essence", notwithstanding the different form of planting.

1. Quantitatively, the increase in the number of units and the subsequent increase in population is not, in my view, materially different. I did not understand the additional units to create any unacceptable increases in loss of privacy or other amenity impacts to adjoining residential properties that were not addressed through a condition requiring additional privacy screens. I do not accept that if there are additional units and an increase in population on the site, that this automatically suggests additional amenity impacts. If there were additional amenity impacts then these should be specifically identified and ameliorative measures considered.

1. In terms of traffic, Mr Shapiro submitted that there was a significant increase in traffic generation, and while this could be a conclusion reached based on the percentage increase in the total number of vehicle movements, it does not provide a realistic assessment. The actual number of additional movements is relatively small, being one additional in-movement and three additional out-movements in the morning peak period and four additional in-movements and one additional out-movement in the afternoon peak.

1. The reliance on the increase in the s 94 contributions is largely unhelpful in determining the question in this case and in effect only reflects the additional population, which I have addressed earlier in the judgment.

1. There being no reasons why the modification application should not be approved, the orders of the Court are:

(1)   The appeal is upheld;

(2)   The application to modify Development Consent DA 1099/04 for the demolition of all existing improvements and construction of a residential flat building at 1A Lamond Drive, Turramurra is approved and subject to the conditions in Annexure A.

(3)   The exhibits are returned with the exception of exhibit A.

G T Brown

Commissioner of the Court

Decision last updated: 29 June 2011