Powell v City of Sydney Council

[2012] NSWLEC 1212

Land and Environment Court

New South Wales

Medium Neutral Citation:

Powell v City of Sydney Council [2012] NSWLEC 1212

Hearing dates:

30 July and 2 August 2012

Decision date:

02 August 2012

Jurisdiction:

Class 1

Before:

Dixon C

Decision:

(1)The appeal is dismissed.

(2)The exhibits are returned upon written publication of this judgment.

Catchwords:

DEVELOPMENT CONSENT - modification of a residential flat building - enclosure of part of the terrace of unit 1 for use as a lounge room - JURISDICTION - is the development after modification substantially the same development as originally approved before modification (if any)

Legislation Cited:

Environmental Planning and Assessment Act 1979
South Sydney Local Environmental Plan 1988
Draft Sydney Local Environmental Plan 2011
South Sydney Development Control Plan 1997 - Urban Design

Cases Cited:

North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280
Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 (24 February 1992)

Category:

Principal judgment

Parties:

Reginald and Jillian Powell (Applicants)

City of Sydney Council (Respondent)

Representation:

Counsel
Dr S Berveling (Applicant)

Ms A Pearman (Respondent)
Solicitors
Shaw Reynolds Bowen and Gerathy Lawyers (Applicant)

Sydney City Council (Respondent)

File Number(s):

10431 of 2012

ex TEMPORE JUDGMENT

1. This appeal concerns Sydney City Council's refusal of a modification application (DA/2004/1149E) to amend development consent (DA2004/1149) for alterations and additions to a residential flat building located at 10 Evans Road, Rushcutters Bay.

1. The s 96(2) application made under the Environmental Planning and Assessment Act 1979 (the Act) concerns an area of the terrace to unit 1.

1. Part A of the Statement of Facts and Contentions dated 31 May 2012 sets out the background to the application, including details about the site, its locality, the proposal and the statutory controls.

1. The council raises two contentions. The first is whether the development after modification is substantially the same as the development originally approved by the Council in 2005; and, the second is the residents' concerns about the amenity impacts generated by the modifications to the development.

1. The Court was able to appreciate the issues, the site, and its locality because the appeal commenced onsite. At that time the Court heard the oral evidence of the local residents and inspected the development from the adjoining park and the property at 8 Evans Rd. The Court also received expert town planning evidence from Mr Black on behalf of the council and Mr Lovell on behalf of the applicant.

1. At the outset I must deal with the jurisdictional issue raised by s 96(2)(a) of the Act because it is determinative of the appeal. Unless I am satisfied, on the evidence, 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), I have no power to grant a consent to the application before the Court.

1. Section 96(2) states:

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 5) 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.

1. In determining the question posed by s 96(2)(a) the experts agree that I must compare the development as modified by this application to the development originally approved by the Council. The plans and notice of determination issued by the council on 22 April 2005 in respect of (DA2004/1149) ("the original consent") are exhibit 2. The Notice of Determination describes the approved development as "Alteration and additions and landscaping to existing residential flat building. Unit 1, internal refurbishments to unit, raise roof height of ground floor garage and installation of roofed privacy screen to garage roof deck. New Glass balustrades to garage roof deck and balconies of to their units".

1. The experts agree that the original consent approved an additional 12 m² of gross floor area within the garage (because the original development provided more off-street car parking than the South Sydney Development Control Plan No 11 Transport Guidelines for Development 1996 (South Sydney DCP) maximum requirement. Under that control, parking above the maximum is therefore considered to be gross floor area). However, the extent of the addition was confined to the garage and no other additional habitable space was approved as part of the original consent. In addition to internal configuration changes to the unit, the consent approved a shelter structure consisting of a slatted timber wall adjacent to the northern boundary approved as an outdoor space. It included six angled steel posts supporting a glass roof structure. The experts agree that the shelter structure was originally approved as part of the outdoor terrace, as a lightweight privacy/shade shelter.

1. As I said, the original consent did not approve habitable space outside the existing building footprint. Condition 2 of the original further consent modified the design. It provided:

2. To reduce the visual impact of the proposal from adjoining properties, the design of the proposed work shall be modified as described below:

(a) The roofed privacy screen shall not extend beyond a point aligning with the western most edge of the balconies at 2 Holdsworth Avenue, as indicated in red ink on the approved plan. To the east of this point, the privacy screen shall be replaced with a standard balustrade no higher than 1 m above the garage roof deck (or the minimum height for a balustrade to a deck in accordance with Building Code of Australia standards).

1. The s 96 application before the Court lodged by the applicant on 22 April 2011 seeks to modify the original consent to convert the previously approved deck shelter structure into a habitable room, being a lounge room. The works have in fact been completed and as such the modification is proposed retrospectively. The proposal seeks to make the structure approximately 4 m² larger and for use as a habitable space adjacent to the ground floor apartment. According to the experts, the proposal seeks additional new habitable floor area of some 29 m² for the ground floor unit. The site inspection confirmed that the modification proposal includes a larger, fully enclosed structure with floor, wall and roof lining, windows, and a double door entry. The threshold issue that I must determine is whether the modified development is substantially the same as the approved development and therefore satisfies s 96 of the EP & A Act.

Jurisdiction

1. The Council contends that, given the originally approved open form of the shelter structure and its intended use as part of the private open space area of the adjacent apartment, the changes proposed to the shelter structure by this application to modify it for use as a lounge room, changes the essence and fundamental nature of the structure as originally approved. On that basis, the Council contends that the structure cannot be considered as "substantially the same" development as originally approved. In support of its case, the Council invites the Court to compare the original consent with the proposal from both a qualitative and quantitative assessment as discussed by Bignold J in Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280 and subsequent legal authorities.

1. It is the Council's case that the use of this habitable space outside the footprint of the building approved by the original consent and accessed through a substantial double door cannot be substantially the same development described as a "roofed privacy screen to garage roof deck" in the Notice of Determination issued to the applicant in respect of the original consent on 22 April 2005. Nor does it meet a description as a "roofed privacy screen aligning with the western most edge of the balconies at 2 Holdsworth Avenue". (Condition 2 of the Notice of Determination exhibit 2)

1. Accepting that the use of the building can change the essence of the development, the Council submits, consistent with its Notice of Determination, that there is simply no jurisdiction to approve the modification application before the Court and therefore the appeal must be dismissed.

The applicant's position

1. The applicant, however, maintains that when looking at the development as a whole, the change to this aspect of the original approval is a minor change. While the structure is some 4 m2 larger and for use as a habitable space for the adjacent ground-floor apartment, the applicant contends the development is essentially the same development originally approved because this aspect of the development approved by the original consent was minor in the whole development. The applicant submits the whole development covered an area of some 700 m², in that context the proposed additional 29 m² of habitable space is minimal and therefore, does not substantially change the originally approved development.

1. In short, after a qualitative and quantitative assessment of the application, the essence off the development is the same: Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 (24 February 1992).

1. Mr Lovell was of the opinion that the use was the same. The original consent allowed people to occupy a space, albeit in an outdoor structure, and the same occupation is provided for in the proposed enclosed indoor structure. While he agreed that the entry doors to the lounge room area would in all likelihood be the main entrance to the apartment, he did not accept that this changed the development. In his planning assessment he told the Court that holistically the development was substantially the same as that originally approved. The applicant relies on the judgment of Mason P in NorthSydneyCouncil v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468, and submits that s 96(2) is to be regarded as a "facultative, beneficial provision" it is to be construed and applied in a way that is favourable to those who seek to benefit from the provision.

Finding

1. Having considered the evidence, including my inspection of the property at the commencement of the hearing and the objectors' evidence taken on site, I have decided that the applicant has not satisfied me of the threshold jurisdictional fact required by s 96 of EP & A Act namely, "that if approved, the modified development will be substantially the same development as approved by the original 2005 consent." In coming to that decision, I am mindful that I am required to compare the development approved in 2005, prior to modifications made to date. Therefore, after that assessment and based on the evidence before me, I must dismiss the appeal because I am not satisfied that the development as proposed will be substantially the same as that originally approved, prior to any modification.

1. Council's bundle of documents includes the Environmental Impact Statement submitted by the application with the original consent and the Council's assessment reports. I have considered those documents and the artist's impression of the proposed privacy screen at p 42 of the bundle taken from the lowest level balcony at 2 Holdsworth Avenue. The structure depicted is essentially what was approved in 2005 by the original consent. The approved development is described on the Notice of Determination dated 22 April 2005 as follows:

Alterations, additions and landscaping to existing residential flat building. Unit 1, internal refurbishments to unit, raise roof height of ground floor garage and installation of a roofed privacy screen to garage roof deck. New glass balustrades to garage roof deck and balconies of other unit.

1. I note the words "...installation of a roofed privacy screen to the garage roof deck..." are not an approval of a room capable of use as a lounge room.

1. To my mind condition 2 underlines the consent authority's concern to reduce any impact caused by the privacy screen when viewed from the neighbour's property it is reduced in length.

1. Condition 2 of that consent, as I quoted earlier, was introduced to reduce the visual impact of the proposal from adjoining properties. The "roofed privacy screen" was shortened in length to reduce the visual impact of the proposal from the adjoining properties.

1. After a consideration of the plans and the Notice of Determination and the documentation which makes up the 2005 consent and the proposal before the Court in exhibit A, when compared from both a qualitative and a quantitative perspective, I agree with Mr Black's evidence that:

The originally approved open form of the shelter structure and its intended use as part of the private open space area of the adjacent apartment, the changes proposed to the shelter structure including increased width, length and height, and its enclosure and full modification for use as a lounge room, changes the essence and fundamental nature of the structure as originally approved.

1. On this basis, it is my view that the structure cannot be considered as "substantially the same" development as that originally approved in 2005.

1. I cannot agree with Mr Lovell's assessment that quantitatively, the enclosure of the structure shelter represents a relatively minor element of the approved development in terms of its floor area, size and visual contribution, and does not significantly or materially change the physical form of the approved development. Nor do I accept that qualitatively, the amended development does not materially change the physical or operational relationship with surrounding land, and there are no merit-based impacts that would warrant refusal of the amended development.

1. Based on the legal authorities to which I have been referred, the merits of the amended development are not a relevant consideration in the determination of the question posed by s 96(2) of the Act in respect of jurisdiction.

1. Accordingly, having come to the decision that I do not have jurisdiction, there is no need for me to deal with the merits of the application.

1. Therefore, I make the following orders:

(1)   The appeal is dismissed.

(2)   The exhibits are returned upon written publication of this judgment.

Susan Dixon

Commissioner of the Court

Decision last updated: 14 August 2012