Porfiri, I v Ku-ring-gai Council

[2007] NSWLEC 168

Land and Environment Court

of New South Wales

CITATION:	Porfiri, I v Ku-ring-gai Council [2007] NSWLEC 168
PARTIES:	APPLICANT: Mr Ivo Porfiri RESPONDENT: Ku-ring-gai Council
FILE NUMBER(S):	10024 of 2007
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Whether ‘substantially the same development’
LEGISLATION CITED:	Ku-ring-gai Planning Scheme Ordinance, (KPSO) Environmental Planning and Assessment Act 1979, ss 79C and 96
DATES OF HEARING:	22/02/2007
EX TEMPORE JUDGMENT DATE:	22 February 2007
LEGAL REPRESENTATIVES:	APPLICANT: Mr I Porfiri, in person SOLICITORS: N/A RESPONDENT: Mr J Robson, barrister, instructed by Ms O Hancock, solicitor SOLICITORS: Deacons

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

22 February 2007

10024 of 2007 - Ivo Porfiri v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the Ku-ring-gai Council (the council) to refuse a to modify a development application to alter and add to a dwelling house at Lot 17, DP 5313 being No 4 Dudley Avenue, Roseville.

2 I visited the land in company with the parties on the morning of the hearing.

3 I have concluded that as the modified proposal would not be substantially the same development as was originally consented to by the council that it cannot be a modification application and thus the appeal must be dismissed.

The land

4 The land is situated on the northwestern side of Dudley Avenue close to the intersection of Dudley Avenue and Archbold Road, between Archbold Road and Skinner Parade. It is rectangular in plan and has a frontage to Dudley Avenue and a rear boundary of 20.115m and side boundaries of 57.91m giving an area of 1164.86m2.

5 The land falls about 3.12m from the front southwest corner at 96.32m AHD to the rear northeast corner of 93.20m AHD, at an average gradient of about 5.2%.

6 The existing building was a contributory item to the National Trust Urban Conservation Area – Roseville, however this listing was not included in any environmental planning instrument. Surrounding development consists of single-storey and two-storey dwellings.

7 Most parts of the former dwelling house have been now demolished leaving only remnants of the former front façade.

Relevant planning controls

Ku-ring-gai Planning Scheme Ordinance, (KPSO)

8 Under the provisions of the KPSO the land is zoned Residential 2(a) and the proposal is permissible with consent.

9 Nos 7 and 8 Dudley Avenue nearby are items of local heritage significance under Schedule 7, Part 2 of the KPSO.

The proposal and its history

10 The second application to modify Development Consent No 325/04B was lodged with the respondent council on 30 November 2006. It is this application that is for consideration by the Court and before this there were other applications as indicated below.

11 On 20 May 2004, Development Application No DA 1528/03 to demolish the existing house and to erect a two-storey dwelling and pool at No 4 Dudley Avenue, Roseville was refused by the council.

12 On 2 April 2004, Development Application DA 325/04 was lodged for alterations and additions to the existing dwelling and on 20 August 2004, this application was granted development consent. This application was to partly demolish the existing dwelling house and to erect a new double-storey dwelling, carport and pool. The consent included the following conditions:

· Condition 4 (under the heading ‘General Conditions’)

4. Demolition work affecting the facade of the dwelling shall be monitored by a suitably experienced and qualified structural engineer before, during and after completion of the works.

· Condition 91 (under the heading ‘conditions to be complied with prior to work commencing’)

91. A report prepared by a suitably experienced and qualified structural engineer shall be submitted to Council, which indicates:

· that the proposed works can be carried out in such a manner so as to ensure the facade of the building can be maintained intact;

· the methods proposed to ensure the facade of the building is maintained;

· the methods of construction recommended so that any damage to the fabric of the building is minimised; and

· a statement of the structural adequacy of the existing building.

13 The council’s employees imposed the above conditions to ensure the existing facade of the building was retained, as was proposed by the applicant. The facade was seen as a valuable element within the overall streetscape and one that contributes to the character of this part of Dudley Avenue.

14 The council’s planning staff consulted with the applicant during the assessment process, and requested that the façade be retained and the applicant’s engineers submitted documentation, which assured the council that this end would be achieved. Hughes Trueman Consulting Engineers Planners and Managers, submitted documentation dated 16 February 2004, confirming the façade would be retained and repaired.

15 On 15 October 2004, the applicant lodged with the council the first Section 96 modification application to DA 325/04A proposing a basement rumpus room, to the rear of the dwelling (beneath the approved family room/guest room) and the removal of a Bunya Pine and replacing it with an existing Palm tree.

16 On 17 January 2005, the council approved the first Section 96 modification application to DA325/04A.

17 On 21 November 2006 a private certifier issued a construction certificate for the approved works under Development Consent DA 325/04A and since then the existing dwelling has been substantially demolished.

18 During demolition, the front facade apparently became structurally unstable, resulting in extensive cracking of the brickwork. The design firm of ‘abvd design’ obtained a structural report by consulting structural and civil engineers, dated 28 November 2006. This report states the facade is unstable and will not withstand any further work immediately surrounding it.

19 The applicant was advised to submit a new development application for the entire demolition of the existing dwelling and the construction of an entirely new dwelling. However, the modification application was pursued.

Notification

20 The modification application was notified from 7 December to 21 December 2006 to nearby owners and occupants and the council received one objection.

The council’s decision

21 By notice dated on about 6 January 2007 the council refused the application for the following reasons:

1. The development is not substantially the same development as that to which consent was originally granted under DA325/04 what was originally applied for as the proposal no longer retains any part of the existing dwelling (as originally approved) but rather becomes the erection of an entirely new dwelling. The proposal fails to satisfy the provisions of Section 96(2) of the act.
2. The standard of information and detail provided on the architectural plans with regard to the panel lift door is of an unsatisfactory standard. In the event of a future application, two doors separated by a central column/pier to provide a more traditional appearance and to break the visual impact of a single door is to be incorporated in the amended plans. A recessive colour such as dark green or red is recommended.

The hearing

22 The appeal was filed on 12 January 2007.

23 At the hearing the court heard evidence on behalf of the respondent council from Ms R Eveleigh, Executive Assessment Officer, Ku-ring-gai Council.

24 Mr I Porfiri, in person, gave evidence.

25 Ms Eveleigh, also prepared the statement of basic facts filed with the Court on 8 February 2007.

The issues

26 On 8 February 2007, the council filed a statement of issues:

1. ‘Substantially the same development’: The proposed modification under section 96(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act) will result in a development that is not substantially the same development as the development for which the consent was originally granted.
2. The public interest: Whether the development is in the interests of the public given the submission made by the residents at No. 6 Dudley Avenue, Roseville.

27 The salient issue was whether the proposal was for substantially the same development.

The evidence and findings

‘Substantially the same development’

28 The council maintained that the modification application is not substantially the same development as that to which consent was originally granted under DA325/04. Ms Eveleigh was of the opinion that if no part of the existing dwelling were retained, as was originally approved, the application becomes an application for the erection of an entirely new dwelling and cannot be considered as a modification of the original consent.

29 Only part of the original façade of the dwelling had been retained. This retention of part of the front of the façade has been required under the original consent for alterations and additions to the dwelling. If this part of the front façade were also removed the character of the application would change from alterations and additions to a completely new development.

30 Mr Porfiri submitted that he would be willing to rebuild the façade with the original bricks. However, I take the view that this would still involve the removal of the original façade.

31 I accept the evidence of the council that if the front façade were removed the proposed development would not be “…substantially the same development as the development for which the consent was originally granted” and the application must fail.

32 I conclude that the applicant has failed to discharge the onus of proof that the development, as sought to be modified, would be substantially the same development as was originally granted consent and for the above reasons, the appeal is dismissed. It is not necessary for me to consider the merits of the appeal.

Orders
33 My orders are:
1. The appeal under s 96(6) of the Environmental Planning and Assessment Act 1979 is dismissed.

2. The application to modify Development Consent No 325/04B lodged with the respondent council on 30 November 2006, to alter and add to a dwelling house at Lot 17, DP 5313 being No 4 Dudley Avenue, Roseville, is refused consent.

3. The exhibits are retained for the present.

S J Watts

Commissioner of the Court

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