Tipalea Watson Pty Ltd v Ku-ring-gai Council - [2003] NSWLEC 253

Reported Decision: 129 LGERA 351

Land and Environment Court

of New South Wales

CITATION: Tipalea Watson Pty Ltd v Ku-Ring-Gai Council [2003] NSWLEC 253

PARTIES:
APPLICANT:
Tipalea Watson Pty Ltd
RESPONDENT:
Ku-Ring-Gai Council

FILE NUMBER(S): 10950 of 2003

CORAM: Bignold J

KEY ISSUES: Development Consent :- modification application-whether modified development substantially the same as originally approved development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96(2)
Land and Environment Court Act 1979, s 39(2)

CASES CITED: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298;
North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97LGERA 433;
Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414;
Vacik Pty Ltd v Penrith City Council (unreported 24 February 1992) Stein J

DATES OF HEARING: 25/09/2003

DATE OF JUDGMENT:
10/24/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr P Clay, Barrister
SOLICITORS
McKees Legal Solutions
RESPONDENT:
Mr M Wright, Barrister
SOLICITORS
Deacons

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Matter No . . 10950 of 2003

Coram : Bignold J

24 October 2003

TIPALEA WATSON PTY LIMITED

Applicant

KU-RING-GAI COUNCIL

Respondent

JUDGMENT

A. INTRODUCTION

1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 96(6) (the EP&A Act) against the determination of the Council refusing a modification application made in respect of a development consent granted by the Council on 12 December 2001 for the development of property known as No 95 Killeaton Street, St Ives by 10 residential units and basement carparking in terms of State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP5).

2. The development consent was granted subject to a number of specified conditions, including a deferred commencement condition (which has since been satisfied and is not relevant for present purposes).

3. The Applicant having acquired the development site subsequent to the grant of the development consent applied to the Council on 24 December 2002 to modify the development consent. The modification application was accompanied by detailed plans and other materials. The letter enclosing the modification application included the following statement concerning the nature and reasons for the modifications for which approval was sought:
· There is no change to the floor area
· There is no change to the number of dwellings
· The general siting, clustering and configuration of the dwellings is unchanged
· The carpark entry and access to the site is unchanged
· The Environmental impacts are improved
· The design and amenity is improved
· Detailed Design resolution as a result of compliance with the original Conditions of Consent (eg Carpark layout Corridor widths, compliance with Australian Standards etc)
· A Request for changes to certain Conditions of Consent, as a result of the conditions:
o are already satisfied by this Section 96 application,
o an element of a condition require change
o or clarification is sought due to ambiguity of the wording of the condition.
· Design development changes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWLEC 253
Decision Date: 10/24/2003

CaseChat Overview and Summary

Tipalea Watson Pty Ltd, the applicant, sought to appeal against the decision of the Ku-ring-gai Council to refuse a modification application in respect of a development consent granted for the development of a property at St Ives. The applicant sought to modify the development consent for the construction of 10 residential units and basement carparking. The applicant's modification application was refused by the council on the basis that the proposed development was not substantially the same as the development for which consent was originally granted, consultation between the council and the Minister had not occurred, and the application was not advertised in accordance with the regulations. The applicant sought a determination of the Court on the preliminary matter of whether the development to which the consent as modified related was substantially the same as the development for which consent was originally granted. The applicant argued that the modification was not substantial and that the modifications were intended to improve the design and amenity of the development.

The Court found that the key difference underlying the competing opinions of the parties concerned their respective appraisals of the effect of the proposed modifications on the external appearance of the development. The Court concluded that the modifications did not result in a development that was significantly different in terms of architectural appearance and character from the originally approved development. The Court found that the modifications represented changes to the external appearance that did not radically transform the originally approved development. The Court also found that the modifications were designed to enhance the housing in the interests of older or disabled persons and were relevant to the qualitative comparison of the originally approved development and the modified development. The Court answered the applicant's preliminary question in the affirmative and found that the two developments were substantially the same.

The Court made the following orders: (1) the applicant's preliminary question be answered in the affirmative; (2) the proceedings be stood over to the Registrar's callover on 29 October 2003; and (3) exhibits (other than Exhibit 1) be returned.

Orders