Richard R Pearson v North Sydney Council

[2003] NSWLEC 378

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Land and Environment Court

of New South Wales

CITATION:

Richard R Pearson v North Sydney Council [2003] NSWLEC 378

PARTIES:

APPLICANT
Richard R Pearson

RESPONDENT
North Sydney Council

FILE NUMBER(S):

10894 of 2003

CORAM:

Bly C

KEY ISSUES:

Development Application :- for alterations and additions to an heritage dwelling

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979, s 96

CASES CITED:

Vasic Pty Ltd v Penrith City Council ;
Tiipalea Watson Pty Ltd v Ku-ring-gai Council [2003] NSWLEC 253

DATES OF HEARING:

17 November 2003

EX TEMPORE
JUDGMENT DATE :

11/17/2003

LEGAL REPRESENTATIVES:

APPLICANT
Mr S Brockwell, barrister
SOLICITORS
Peter Prior & Company

RESPONDENT
Ms H Irish, barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10894 of 2003

Bly C

17 November 2003

Richard R Pearson
Applicant
v

North Sydney Council
Respondent

Judgment


1 . Some time ago this applicant sought from the North Sydney Council an approval for extensive alterations and additions, to an existing heritage listed dwelling house at 15 Kareela Road, Cremorne Point.

2 . Following council’s examination of that application, concerns were communicated to the applicant which resulted in a number of changes to the application. As a result of those changes, the council then was able to conclude, having considered the reports of its experts, that the proposal was satisfactory and that consent could be granted. Such consent was granted on 24 June 2002 (Exhibit A).

3 . More recently the applicant lodged an application under s 96 of the Environmental Planning and Assessment Act 1979 (“the Act”) with the council to amend the consent to effectively reinstate the original proposal. At this point, I can understand the concern and frustration on the part of the council that this might be seen to be a roundabout way for the applicant to get what they originally wanted by putting themselves in the position of having the principal part of the development already approved. In recognising this I make the point, as I have already done earlier today, that as frustrating as that might be to the council it is irrelevant to the determination of whether or not this s 96 application is an appropriate means of amending the current consent. What I have to do is simply answer the question of whether this is a proper s 96 application.

4 . This question came before the Registrar as part of a Statement of Issues. The first issue involves the question of whether or not the proposed development to which the consent, as modified, is substantially the same development as the development for which consent was originally granted as required by s 96(2)(a) of the Act.

5 . If it was not already clear to everyone in this courtroom before we began, this question is not one involving the determination of the merits of the matter. The merit matters are for another day. What I am required to decide is whether the proposal (as detailed in Exhibit 1, by the use of coloured notations for the most part), if effected would result in a development that is substantially the same as that for which the consent was granted.

6 . To determine this question it is necessary to consider both qualitative and quantitative changes. In this context, I have considered Exhibit 1 and Exhibit A and in a quantitative sense the proposal involves about 3 m2 of extra floor area, an increase in height above that same floor area of about 1.8 m and the extent of the additional floor area in the original consent. This represents a quite small additional building volume. This additional floor area is to be changed in use from a walk-in wardrobe to a study. In relation to the overall changes of internal use within the building, this is a minor change.

7 . Taking into account the proposed additional building height and volume and the conversion of the walk-in wardrobe to a study, it is possible, if not probable, that there will be amenity impacts of the kind foreseen by Mr Mossemenear, possibly including reduced solar access for a neighbouring property and loss of views. It is also possible because this is a heritage item that the change to the size and style of the approved dormer, could result in adverse heritage impacts.

8 . However, as I have already indicated, impacts of this kind should be left for the time when the matter is dealt with on its merits and I have not been persuaded that such matters are relevant considerations for the determination of the question of whether this application would result in a development that is substantially the same development as that for which consent was originally granted.

9 . I was taken to a number of cases, including Vasic Pty Ltd v Penrith City Council (unreported 1992) where Stein J said that in his opinion the word substantially , when used in s 96, means essentially or materially or having the same essence . Applying this test to the facts which I have described, I am satisfied that if the changes as sought were to be incorporated into what has been approved, the resulting development would be essentially the same.

10 . Similarly in Tipalea Watson Pty Ltd v Ku-ring-gai Council , [2003] NSWLEC 253, Bignold J in dealing with an application that would result in some changes in the external appearance of an approved development, concluded that the changes to the external appearance of that building would not radically transform the originally approved development. In applying this test I do not believe that the proposal would radically transform the originally approved development.

11 . It is therefore my opinion that the answer to the question of whether or not the proposal would be substantially the same development is, yes.

12 . The orders of the Court are:

1. In relation to the application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 to modify Development Application No. 1056/01 for alterations and additions to the existing dwelling house at 15 Kareela Road, Cremorne, the question of whether the proposed development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted is answered in the affirmative.

2. Exhibits A and 1 are retained.

___________
T A Bly
Commissioner of the Court
rjs