Andari-Diakanastasi v Rockdale City Council

IN THE LAND AND Matter No. 10152 of 2000 ENVIRONMENT COURT Coram: Talbot J OF NEW SOUTH WALES Decision Date: 24 October, 2000

Maryanna Andari-Diakanastasi Applicant v Rockdale City Council Respondent

In March 1998 the applicant lodged with the respondent council a set of plans in support of an application for development consent to a dual occupancy development. The proposed building has a frontage to O'Neill Street, Brighton-Le-Sands along its widest part and a narrower frontage to Crawford Road.

The original design depicted two units respectively at the northern and southern extremities of the building. A set of garages separated the two dwellings although it presented as a continuous form of building.

No accommodation was proposed above the two garages set in the centre of the building.

Balconies were proposed off a landing at the head of the stairs and an adjoining bedroom on the first floor.

The balconies at the first level were accessible through a single door. Windows opened onto the balconies.

The layout of the two units were mirror images to each other.

The council raised a number of concerns following the lodgment of the original plans. In September 1999 it effectively invited the applicant to address those concerns, particularly as they related to setback from the boundaries.

The council officer indicated that of all the variations sought the rear setback was to his mind of greatest concern.

Following that invitation the consideration of the application for development consent was deferred to enable the applicant to indicate whether she intended to amend the development application to address the issues raised.

The subject plans were amended plans. The original application having been lodged in March of 1998, the invitation to make amendments to the amended plans was not made until September 1999.

When the appeal was lodged the applicant caused a further and third set of plans to be prepared. On 23 August this year the applicant filed a motion seeking leave to substitute the further amended plans by way of an amendment to the development application.

The council has responded to the applicant's motion to the effect that the plans now presented to the Court cannot be properly regarded as an amendment and that the changes proposed are such that the application should be treated as a fresh development application.

The parties have argued the issues before the Court this morning on the basis of a comparison between the first amended plans and the second amended plans lodged in August 2000.

The Court has not been appraised of the form of the original plans lodged with the council.

I will proceed to determine the notice of motion on the basis that there was no relevant significant difference between the original plans and the first amended plans.

The plans upon which the applicant now proposes to rely make significant changes in a number of respects. There is not a real issue between the parties in this regard. I nevertheless think it is fair to summarise the changes.

Firstly, there has been a change in the footprint and the roof line of the building. The footprint has been changed to accommodate the increased setback from the boundaries. The reduction in the footprint has caused the applicant to make up the floor space thereby lost to a large extent by in-filling on the first floor above the garage.

Secondly, there have been alterations made to the design of the facade and the openings in the facade so that the building now has an appearance that is regarded as distinct from the appearance of the building as it was in the original plans.

The third consequence of the changes made in an attempt to meet the council's criticism is that there is a different configuration of the rooms and a re-distribution of the floor space. In this respect the two dwellings are no longer a mirror image of each other. One of the units has an additional bedroom. Mr Burrell concedes, quite correctly, that the layout within the dwellings is entirely different.

Fourthly, the plans reflect the responsive provision for greater setback from the boundaries generally, not only the rear boundary.

Finally, Ms Hewitt points out on behalf of the council that it is now part of the proposal to have a substantial fence along the whole of the northern boundary fronting O'Neill Street. The fence is continued along the frontage of Crawford Road in a similar design. The fence along Crawford Road has open panels in each case. Some of the panels of the fence fronting O'Neill Street are filled in, presumably to address privacy concerns in relation to balconies or patios at ground floor level.

Mr Burrell's primary submission is that as both plans depict the same type of development, that is, a dual occupancy, the amended plans should be regarded as being in respect of the same development and no more than an amendment of the overall concept which has not changed in character.

He also pays regard to the line of authorities stretching back to Cambridge Credit Corporation Ltd & Anor v Parkes Developments Pty Ltd [1974] 2 NSWLR 590 and IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62, all of which have regard to a test based on whether the changes are such that a reasonably minded objector might reasonably entertain objections to the amended development.

The Court recognises the importance of this criteria but nevertheless does not see the test as decisive in modern circumstances. Most consent authorities nowadays have a policy of re-advertising amended plans irrespective of whether they amount to a fresh application.

That is not to say that the Court should not have regard to the extent to which the interests of objectors might be properly addressed if a fresh application is made.

The Court is not fully appraised of the extent or nature of the objections raised in this particular case but it nevertheless is able to appreciate that the changes, irrespective of their categorisation, may be of interest to objectors and are sufficient to justify re-advertising.

Such a conclusion nevertheless does not necessarily lead to treating the new plans as amounting to a fresh application for development consent.

Mr Burrell also asks the Court to have regard to the circumstances of the particular case where the further plans are provided as part of an evolving responsive process to bring about what the consent authority obviously regards as improvements and where the plans are presented at the express invitation of the consent authority.

That could well be a balancing factor in determining whether or not leave should be granted to provide an amended set of plans pursuant to the Court rules.

However, whether plans are lodged in response to an invitation from the consent authority to address what it considers to be unsatisfactory aspects of the development will not necessarily always lead to a categorisation of the plans as being merely an amendment to the application.

The test has been referred to on many occasions as being whether the changes made are so substantial that the application must be regarded as a new application. As Ms Hewitt reminded the Court, this has heretofore been regarded as essentially a question of fact.

In response to Mr Burrell's submission that a decisive factor is whether it is the same type of development, Ms Hewitt submits that a test of whether the type is different to that which was originally depicted is not necessarily decisive unless it is distinct. I agree with that submission.

In terms of the responsive test which Mr Burrell urges the Court to apply I am of the view that it is the response itself that determines whether or not the submission should be treated as a fresh application rather than the circumstances under which the response is solicited by the consent authority.

I agree with Mr Burrell that when many of the amendments are looked at in isolation they might individually be regarded as minor in many respects. However, not all of the changes are in that category.

The shape of the building is distinctly different. The footprint of the building is substantially changed. The internal layout within the units bears no comparison to that which was depicted in the original plans.

In this case I do not place a great deal of weight on the changes to the internal configuration of the buildings. However, in totality, when one compares one set of plans to the other it is difficult to find common elements. The two sets of plans must be regarded as being in contrast to each other.

Mr Burrell needs to persuade the Court that his primary submission in relation to the maintenance of the same type of development is the primary and essential criteria which the Court should take into account.

During submissions I asked Mr Burrell whether if, for example, the development proposed had been a dwelling house and the original plans depicted a single storey building and the amended plans showed a two storey building, that could nevertheless be regarded as the same development. Recognising the wide compass of such a proposition, Mr Burrell nevertheless responded that although there could be circumstances where the plans would be regarded as distinct and different, the fact that the development proposed was still a dwelling house would be sufficient to justify treating the changes as being no more than an amendment.

I have a great deal of difficulty in coming to grips with such a wide proposition in the context of a general test.

Mr Burrell invited the Court to adopt a definitive stand in this case so that the doubts which arise from time to time might be resolved by reference to a standard test to be applied on a general basis.

As attractive as such an invitation might be, I am not disposed to take the test any further than that which I referred to earlier, namely, whether the amendments are so substantial that the revised plans should be regarded as relating to a different development.

Each case must be decided as a matter of fact on its own merits, according to the circumstances in each instance.

This case is a difficult one. Mr Burrell is quite correct when he says what is proposed here is a two storey dual occupancy development and any person who has objected or would like to object in the future will not be prejudiced because the plans will be re-advertised in any event.

It is a question of fact and degree in each case. In Cornale v Hornsby Shire Council [1999] NSWLEC 228 I decided that a reduction of the number of units within a building from two to one was sufficient to distinguish one set of plans from another and that in that case the amended plan should be regarded as a new application.

The Court does not have the benefit of such a distinctive change in the present case. However, a close consideration of the plans presented to the council and to the Court show that there is hardly any aspect of this building as now proposed which remains consistent with the original plans.

The only consistent element is that there are two dwellings proposed which together might be categorised as dual occupancy. From there on the comparisons cease and every element of the development is in contrast to its predecessor.

In the circumstances I am satisfied that the plans upon which the applicant now seeks to rely amount to plans for a different development. Accordingly, if the applicant proposes to rely on them they should be the subject of a fresh application.

The consequence is that the applicant's notice of motion of 23 August 2000 should be dismissed.

I am not sure what the future conduct of the proceedings should be because the original plans remain on foot. The applicant may decide to proceed with the application either on the basis of those plans or even, dare I suggest, some further amended plans which are not so radical. Both sides of the bar table may prefer to consider the position and have the matter listed before the Registrar for further call-over at a mutually convenient date.

In the circumstances I am prepared to give the applicant the benefit of the doubt in regard to costs. The plans are generally responsive to the invitation made by council in its letter dated 17 September 1999. Although the applicant has failed to keep the development within the bounds of the original application nevertheless it was not an unreasonable attempt to maintain setbacks and to obtain the same result in terms of the floor space of living areas.

The exercise is probably demonstrative of the difficulties caused by the configuration of the site and meeting the council's requirements within those constraints. There is no suggestion that the applicant acted in an irresponsible or frivolous way. It is unfortunate that it took so long to respond but I cannot see that as being a decisive element in relation to the question of costs. The issue would have arisen even if the amended plans had been lodged the next day.

The response was a planning response that has had a certain unfortunate result. I am not prepared to treat the circumstances as being exceptional. Accordingly, I make no order as to costs.

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