Austcorp No 459 Pty Limited v Baulkham Hills Shire Council [2002] NSWLEC 90

Reported Decision : (2002) 122 LGERA 205

Land and Environment Court of New South Wales

CITATION : Austcorp No 459 Pty Limited v Baulkham Hills Shire Council [2002] NSWLEC 90 APPLICANT Austcorp No 459 Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10007 of 1999 CORAM: Cowdroy J - KEY ISSUES: Development Consent :- modification - whether development is substantially the same as that for which approval was granted Baulkham Hills Local Environmental Plan No 1991 LEGISLATION CITED: Draft Baulkham Hills Local Environmental Plan - Amendment No 98 Environmental Planning and Assessment Act 1979, s 76A, s 78A, s 79C, s 81A, s 96, s 109C, s 124 Environmental Planning and Assessment Regulation 2000, Pt 4A, cl 145, cl 146, cl 147 Fernance Family Holdings Pty Ltd v Newcastle City Council (2000) 110 LGERA 66; Hope v The Council of the City of Bathurst (1979-1980) 144 CLR 1; Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404; CASES CITED: Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; Sydney City Council v Ilenace Pty Ltd (1984) 3 NSWLR 414; Willoughby City Council v Dasco Design and Construction Pty Ltd and Anor (2000) 111 LGERA 422; Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240 DATES OF HEARING: 06/02/02, 07/02/02, 06/05/02, 07/05/02, 08/05/02 DATE OF JUDGMENT: 06/07/2002

APPLICANT Mr D Wilson (Barrister)

SOLICITORS Peter Bouzanis & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr P McEwen SC

SOLICITORS PricewaterhouseCoopers Legal

JUDGMENT: IN THE LAND AND MATTER No. 10007 of 1999 ENVIRONMENT COURT CORAM: Cowdroy J with Commissioner Watts OF NEW SOUTH WALES DECISION DATE: 7/06/2002

Austcorp No 459 Pty Limited Applicant v Baulkham Hills Shire Council Respondent

JUDGMENT The Application 1. This is an application pursuant to s 96 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") by Austcorp No 459 Pty Limited ("the applicant") to modify a consent granted by this Court ("the consent") in proceedings known as Designlink International Pty Limited v Baulkham Hills Shire Council Appeal No: 10007 of 1999. It was determined by Senior Commissioner Jensen and took effect on 2 November 1999. The consent was granted in respect of an apartment building ("the development") on Lots 16-18 Section 3 DP 6436, being known as Nos 18–22 Campbell Street, Northmead. All structural works ("the building") have been completed but not in accordance with the consent plans approved by this Court. The Court has been assisted throughout this hearing by Commissioner Watts. 2. The discrepancies between the consent plans and the building were discovered when an application for strata subdivision of the building was made to Baulkham Hills Shire Council ("the council") and refused. In separate proceedings in this Court (No. 11004 of 2001) such refusal is challenged. The determination of those proceedings awaits the outcome of these proceedings. Approved development 3. The approved development comprised 10 x 2 bedroom units and 16 x 3 bedroom units with provision of a total of 63 off street parking spaces comprising 46 resident and 17 visitor spaces. 4. The residential units were to be contained in two buildings aligned north to south. Landscaped lawns and a footpath were to provide separation between the buildings. A communal recreation park incorporating a walking trail was also approved in the south-western corner of the site as well as a swimming pool in the north-eastern corner behind the front wall. 5. Each of the units incorporated an individual balcony accessed from the main living rooms. The approved building was to be two-storeys in height with two units contained within a partial third floor of the building occupying the western portion of the site. The approved car parking layout comprised two levels with six sets of stairs providing access to the units above. The parking area was also to incorporate three storage areas and a bicycle rack. 6. The approved external materials included cement rendered brickwork, concrete roof tiles, wrought iron railings and aluminium framed windows and doors. Relevant planning controls 7. Several planning instruments apply to the site. Under the Baulkham Hills Local Environmental Plan No 1991, ("the BHLEP") the land is zoned as Residential 2(a) and apartments buildings are permissible as "advertised" development. A draft environmental plan known as the Draft Baulkham Hills Local Environmental Plan – Amendment No 98, ("the DLEP") is proposed and pursuant to its provisions the land would be zoned Residential 2(a1) in which apartment buildings are permissible with consent. The DLEP has been forwarded to PlanningNSW. In addition council has adopted development control plans, the relevant plans being Baulkham Hills DCP No 23 – Apartment Buildings ("DCP 23") and Baulkham Hills DCP No 102 – Car Parking ("DCP 102"). There have been no substantial changes to the instruments since the consent was granted. The Land 8. The land is situated on the southern side of Campbell Street about 300 m east of Windsor Road at Northmead. The land is irregular in shape and has a frontage to Campbell Street of 45.73 m and a depth of 93.695 m along the western boundary. The eastern boundary is 64.275 m and the site has a total area of 3,708 m2. The rear boundary abuts an industrial estate. The land has a cross fall of approximately 8 m from the Campbell Street frontage to the rear. The completed building comprises a part two-storey and part three-storey structure with a single level of car parking beneath. 9. The area is characterised by dwellings, town houses and residential flats in established residential areas. The adjoining development to the west comprises town houses on the Campbell Street frontage and an apartment development to the rear fronting Windsor Road. Opposite the site in Campbell Street single storey dwellings are erected. At the eastern end of Campbell Street is Northmead High School. The modification application and its history 10. The consent was granted to Designlink International Pty Limited ("Designlink"). Subsequently the applicant became proprietor of the land on or about 29 June 2000. Following the grant of consent changes were made to the consent plans. 11. Prior to commencement of construction the applicant retained the services of a certifier known as Essential Certifiers Pty Ltd ("the certifier") of which Mr Bernie Cohen was principal. The applicant claims that it received advice from the certifier that the consent plans of the building could be altered without the need for Court approval. Accordingly modifications were made to the consent plans ("the amended plans") by Drummond & Rosen Architects. On 12 September 2000 the certifier issued the applicant with a construction certificate purportedly pursuant to s 109C(1)(b), s 81A(2) and s 81A(4) of the EP&A Act. The construction of the building was thereafter carried out purportedly in accordance with the amended plans. In addition to the changes to the Court approved design, there were significant departures from the amended plans in the course of construction. Rejection of strata subdivision application 13. By notice dated 9 November 2001 the council refused a strata subdivision of the building upon the grounds that the development "as built" was not in accordance with the consent. The applicant now makes this application for modification of the consent. The Issues 14. The statement of issues dated 24 January 2002 raises matters of amenity, privacy, setback, visual presentation, height and bulk of the building, building separation, open space, visual privacy, parking and the public interest. Although no issue is raised concerning the power of the Court to grant the application pursuant to s 96 of the EP&A Act, the Court must be satisfied that the requirements of s 96 are satisfied in order to found its jurisdiction. The Evidence 15. The evidence establishes that unauthorised works have been carried out. The applicant's explanation for such departures ultimately rests on the claim that the certifier had granted approval to the amendments to the consent plans. Mr Diab Finianos a director of the applicant testified of the circumstances surrounding the construction of the building. Mr Finianos explained that although he was aware of the differences between the consent plans and the amended plans he was assured by the certifier that construction could proceed in accordance with the amended plans. 16. Mr John E Coady, town planner, was called in support of the applicant. Mr Coady testified that the modifications to the original plans were of a relatively minor nature; there was no substantial impact on privacy or overlooking; the visual presentation of the building did not substantially alter the external presentation of the building and open space was not substantially impaired. As to parking he analysed the requirements of DCP 23 and DCP 102 and concluded that the number of spaces were adequate although he acknowledged some spaces would be difficult to access. Mr Coady considered the council's requirements of 17 visitor parking spaces for 26 units to be grossly excessive. As to DCP 23 requirements for manoeuvring (Clause 3.13(d)) and reversing bays (Clause 3.13(j)) Mr Coady considered that council's requirements were inconsistent with the guidelines contained in Australian Standard AS2890.1-1993. In several instances the only parking was "stacked parking" whereby one vehicle is parked behind another in tandem. Although DCP 102 provides that such parking is not to be included, Mr Coady considered that it should be taken into consideration. The consent plans made provision for three stacked parking spaces, whereas the building provides 7 stacked spaces. Preliminary issues 17. It is necessary to determine whether the Court has power under s 96 of the EP&A Act to retrospectively modify a development. 18. It is also necessary to determine if the conditions specified in s 96 have been satisfied. An application pursuant to s 96 (1A)(a) may be made where the "… proposed modification is of minimal environmental impact". Another condition requires the Court to be satisfied "… that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted …"; (s 96(1A)(b)). Pursuant to s 96(2) the Court is granted a general power to grant a modification if it involves more than minimal environmental impact provided the development is substantially the same development and provided other conditions are fulfilled as set out in s 96(2)(b), (c) and (d). Whether the application is made pursuant to s 96(1A) or s 96(2) it is necessary to make an assessment of the environmental considerations specified in s 79C of the EP&A Act (see s 96(3)).

Does s 96 of the EP&A Act operate retrospectively?

18. In Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240, Talbot J determined that the provisions of s 96 could apply to a development which has already been carried out. Such decision was reached after considering the inter-relationship between s 76A and s 124(3)(a) of the EP&A Act. The provision of s 76A(1) (contained in Part 4) constitutes a prohibition on the carrying out of development where consent is required. The remaining subsections of s 76A do not detract from such prohibition. 19. Section 124 of the EP&A Act empowers the Court to grant orders restraining a breach of the Act. Where a breach of the EP&A Act has occurred by reason of the failure of a person to obtain consent required under Part 4 the Court is empowered to adjourn those proceedings for the specific purpose of enabling the defendant to make a development application under Part 4 to obtain that consent (s 124(3)). 20. In Windy Dropdown, Talbot observed that s 76A and s 78A (making of an application for consent) "…clearly operate in the context of a prospective proposal whereas a modification of consent pursuant to s 96 operates retrospectively by dint of s 96(4). A modification may or may not alter some aspect of the development itself. That some degree of change is contemplated is recognised by the constraint in s 96(1A) and (2) that the development to which the consent as modified relates must be substantially the same development". 21. Section 96(1A) is the only provision contained in the EP&A Act applicable to modification of a consent. Sub-par (a) of s 96(1A) appears to relate to prospective changes when it speaks of "the proposed modification". However such words are equivocal. It could mean the prospective development per se, that is, development yet to be carried out. Alternatively it could be a reference to the modification which is being sought from the Court by virtue of the s 96(1A) application. As a matter of statutory construction the purpose of the legislation is to be ascertained (Kingston & Anor v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 per McHugh JA). 22. Unless the latter construction is adopted, s 124(3) could never have any application in respect of development already carried out without the requisite Part 4 approval. Since such result is clearly not intended by Parliament the Court determines that the provisions of s 96(1A) can apply in respect of development carried out in the absence of development consent. The Court accordingly follows the decision of Talbot J in Windy Dropdown, and of Bignold J, in Willoughby City Council v Dasco Design and Construction Pty Ltd and Anor (2000) 111 LGERA 422. Is the building the "same development"? 23. When the building as constructed is compared to the consent plans which were approved by the Court the differences are substantial and include: i. deletion of the lower basement level of car parking; ii. relocation of two wings of the building to be 2 m closer between the opposing faces of bedrooms and 900mm closer in other parts; iii. reconfiguration of external openings and architectural detailing; iv. redesign of roof form; v. deletion of swimming pool; vi. redesign of vehicular ramp not in accordance with the council's requirements and as a result footpath cross-fall at the top of the ramp is sloping down towards the land rather than down towards the gutter; and vii. raising the top level of the stormwater detention tank by 2.5 m above ground level instead of finishing at natural ground level with landscaping. 24. There have been numerous decisions both of this Court and of the New South Wales Court of Appeal concerning the test to be applied to determine if the development is "the same". In Sydney City Council v Ilenace Pty Limited (1984) 3 NSWLR 414 the Court when considering the equivalent to s 96 in the unamended EP&A Act drew a distinction between a matter of substance compared to a matter of mere detail. 25. In Moto Projects (No. 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298, Bignold J at p 309 observed as follows:- The relevant satisfaction required by s 96(2)(a) to be found to exist in order that the modification power be available involves an ultimate finding of fact based upon the primary facts found. I must be satisfied that the modified development is substantially the same as the originally approved development.

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.

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 developments being compared in their proper contexts (including the circumstances in which the development consent was granted). Such approach was adopted by Bignold J in Fernance Family Holdings Pty Ltd v Newcastle City Counci l (2000) 110 LGERA 66. 26. I respectfully agree with the approach taken by His Honour. It accords with the decision of the New South Wales Court of Appeal in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468. The question is essentially one of fact: Hope v The Council of the City of Bathurst (1979-1980) 144 CLR 1 per Mason J (as he then was) at p 7-8. 27. The Court has reviewed the nature and extent of the changes made by the applicant to the consent and the circumstances of the consent. It observes that Senior Commissioner Jensen considered many aspects of the application for development and especially noted that there would be scope for extensive landscaping. 28. It could be arguable that some of the individual changes do not render the building as constructed a different development, but cumulatively all of the alterations render the development significantly different to that approved. The removal of a basement level of car parking, the reconfiguration of the design of the two wings of the building, their relocation closer together and the change in the roofline are significant alterations. In the Court's determination such changes are so substantial that the completed building is not the same as that for which consent was granted by Senior Commissioner Jensen. Accordingly the conditions contained in s 96(1A)(b) and s 96(2) (a) of the EP&A Act have not been satisfied. Environmental impact of the unauthorised amendments 29. In view of the finding above it is unnecessary to consider the further requirements of application for modification. However in addition the Court will address the other requirements of s 96(1A)(a). 30. The Court must be satisfied that the proposed modification is of minimal environmental impact having regard to provisions of s 79C of the EP&A Act. In applying those provisions the Court finds that the changes which have been made to the approved plans create an impact to the environment which is more than minimal in the following respects:- i. deletion of lower basement level of car parking has resulted in the character of the landscaping around the building being changed. High floor to ceiling distances in the upper level of the car park as approved provided opportunity for stepping down the ceiling of the car park around its perimeter thereby enabling lawn to extend from the face of the building to the boundaries of the land. As built that landscaping is now reduced in width since the car park extends above ground level with a larger footprint instead of being recessed below the approved landscaping. The car parking layout has changed to include four more stacked spaces than the three that were originally approved, placing limitations on the use of those extra car parking spaces to the detriment of the occupants of the building; ii. relocation of the two wings of the building 2 m closer between opposing faces of bedrooms has created a greater opportunity for cross-viewing between bedrooms and has changed the form and character of the central space. This reduction in separation of the two wings of the building combined with a change in fenestration of opposing courtyard walls has created opportunity for cross-viewing between units. In particular there would be unreasonable cross-viewing between kitchens of Units 8, 9 and 10 on the ground floor and Units 20, 21 and 22 on the first floor and habitable rooms opposite. In the plans approved by the Court eating nooks were on the blank outside walls with windows only to the side and no direct cross-viewing was possible. The kitchens as approved were inboard of the eating nooks and no cross-viewing was possible from those kitchens. As a consequence acoustic and visual amenity of the occupants of opposing units would be adversely affected; iii. reconfiguration of external openings and architectural detailing has resulted in a loss of amenity and loss of privacy to occupants of the building and of neighbours. On eastern and western sides of the building windows have been increased in size both in height, width and position and as a result, especially from upper floors, there would be the potential for increased overlooking of adjoining residents. This is of particular concern for existing residents to the west; iv. redesign of the roof has led to a different visual aesthetic with a mixture of gabled and hipped roof forms rather than hipped roofs as approved. As constructed, changes in roof levels as the building steps down the site are of a gabled form rather than a hipped transition as approved by the Court. The resultant form is inferior to that originally approved; v. swimming pool has been deleted leading to a reduction in amenity of the occupants; vi. vehicular ramp is not designed in accordance with the council's requirements and as a result there is insufficient cross fall at the top of the ramp to provide for adequate stormwater freeboard and the possibility that stormwater might penetrate basement car parking area; and vii. elevated detention tank would impact on the available soft landscaping and result in an adverse impact on the use of open space common areas.

30. In combination these changes result in adverse environmental impacts that were not contemplated by the Court when it approved the development in its original form. The amenity of occupants of the building and of nearby and adjoining residents would be reduced as a result of the changes made to the consent plans. Aesthetically the proposal has been downgraded by changes to the architecture and landscaping considered by the Senior Commissioner. Thus the Court is satisfied that the proposed modification is not of minimal environmental impact under the requirements of s 96(1A)(a). Certifier's position 31. The applicant submits that certification was granted by the certifier and that it is entitled to rely upon the construction certificate issued pursuant to s 109C of the EP&A Act. 32. Mr Cohen has not been called to give evidence. Accordingly the Court is deprived of any facts surrounding the initiation of the substantial changes made to the consent plans. Further, no records were produced by the applicant in answer to a subpoena which may have revealed how such changes were initiated. 33. It is important to have regard to the construction certificate purportedly issued pursuant to s 109C(1) of the EP&A Act. Such section relevantly provides: The following certificates (known collectively as Part 4A certificates) may be issued for the purposes of this Part: (b) A construction certificate, being a certificate to the effect that work completed in accordance with the specified plans and specifications will comply with the requirements of the regulations referred to in s 81A(5), …. 34. Strict requirements are contained in the Environmental Planning and Assessment Regulation 2000 ("the Regulation") in respect of the issue of certificates issued under Part 4A of the EP&A Act. Clause 145 of the Regulation relevantly provides:- 145 (1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: (a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent. … (2) A certifying authority must not issue a construction certificate for subdivision of work unless it is satisfied that the design and construction of the work (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent. Is the construction certificate valid? 35. Clause 147 of the Regulation requires the certifying authority to include the name of the accreditation body by which he or she is accredited (cl 147(1)(b)(ii)). Further, the certifier must comply with the requirements of cl 147(1)(e) of the Regulation which provides for the incorporation of a statement as follows:-

(e) a statement to the effect that work completed in accordance with documentation accompanying the application for the certificate (with such modifications verified by the certifying authority as may be shown on that documentation) will comply with the requirements of this Regulation as are referred to in section 81A(5) of the Act. 36. There has been a failure to comply with each of the above requirements. The accreditation body is not nominated, contrary to cl 147(1)(b)(ii) of the Regulation. Further, the certification required by cl 147(1)(e) of the Regulation is meaningless since the purported statement in compliance is as follows:- I certify that the work if completed in accordance with these plans and specifications will comply with the requirements of s 81A(5) of the Environmental Planning and Assessment Act 1979.

When regard is paid to the statement, it fails to certify that the words " will comply with the requirements of this Regulation …". Such omission is critical since there is no certification that the design and construction of the building will not be inconsistent with the development consent (cl 145(1)(a)). It is also apparent that the accredited certifier, Mr Bernie Cohen, has not signed the construction certificate. For these reasons the certificate does not constitute a valid certificate as provided by s 109C(1) of the EP&A Act. 37. The Court also observes that the departures as purportedly approved by the certifier differ so substantially from the plans approved by this Court that no reasonable certification could be given in satisfaction of the requirements of cl 145(1) of the Regulation. As constructed, the building in several respects does not even accord with the plans for which the purported certification was provided. 38. In the circumstances, the construction certificate does not satisfy the requirements of cl 146 of the Regulation, and no weight can be given to it. Orders 39. The Court orders that:-

1. The application be dismissed 2. Costs are reserved 3. Exhibits be returned, except Exhibit B. ************

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