Australian Enterprise Holdings Pty Ltd t-as AEH Group v Camden Council

(iii) an Additional Supplement to the Remediation Action Plan ("RAP") prepared by URS, dated 15 April 2010; and

(iv) a letter from Mr Ross McFarland to Mr Keith Hobbs, dated 20 April 2010. 2 The application is brought in the context of proceedings concerning an class 1 appeal (filed on 1 April 2010) against the conditions imposed by a notice of determination dated 8 September 2009 (DA/664/2008) ("the DA"), for the demolition of existing structures and the construction of a mixed use development, comprising multi unit housing (including aged care living and residential units), shop-top housing, tourist facilities (a motel and cultural centre), restaurants, ancillary shops, professional suites, a residential care hostel and medical centre, at the former Camden High School site at Camden (Lot 1 DP 8065) ("the site").

3 The AEH Group contends that the amended development application as constituted by the material it now seeks to rely upon is permitted by cl 55 of the Environmental Planning and Assessment Regulation 2000 ("the Regulation").

4 The council opposes the leave being granted on the basis that the material amounts to a new development, and therefore, the Court has no jurisdiction to entertain what is now an original development application in the context of the class 1 appeal.

5 At issue, therefore, is whether the material now relied upon by the AEH Group constitutes an amended development application or amounts to a new and original development application.

Disposition of the Application 6 In my view, the material forming the basis of the application does not amount to a new development application and it is appropriate in the exercise of the Court's discretion that leave be granted to the applicant to rely upon it.

7 The nature of the amendments are, however, not "minor" pursuant to s 97B of the Environmental Planning and Assessment Act 1979 ("EPAA"), and therefore, the AEH Group must pay the council's costs occasioned by the amended development application.

Notice of Determination 8 The notice of determination issued by the council on 8 September 2009 was by way of deferred commencement consent. The proposed development was described as follows: Redevelopment of the former Camden High School site comprising demolition of disused school buildings, remediation of contaminated land, earthworks, refurbishment of 1 existing building, the erection of 57 multi unit dwellings, 108 self contained seniors living dwellings, 76 bed residential care facility, 51 bed motel, restaurant, cultural and community centre, medical centre, ancillary shops, under croft car parking and landscaping works. 9 Conditions 1 and 2 of Schedule A to the notice of determination necessitated that the remediation works were to be completed in full prior to the development consent becoming operative. 10 The development application form submitted by AEH Group to the council on 11 July 2008, described the proposed development as "a mixed use development comprising multi unit housing (including seniors living and residential units) shop-top housing, tourist facilities (motel and cultural centre) restaurants, ancillary shops and professional suites at ground level, residential care hostel and medical centre."

11 The application form gave an estimated value of $62 million and under "type of application" it relevantly ticked the boxes for "development", "demolition" and "subdivision". No subdivision plans in fact accompanied the application and none were before the council when it assessed and approved the development application.

12 The development application did, however, seek consent for staged development and remediation. Background to Application and Evidence of the Council 13 The background to the application, which was not disputed by the council, is contained in the affidavit of Mr Anthony Whealy, sworn 23 April 2010. Mr Whealy is the solicitor for AEH Group.

14 He states that in the class 1 appeal the AEH Group objects to the deferred commencement conditions and seeks conditions that would result in an operative consent facilitating the staged remediation, demolition and construction of the development. Proposed indicative conditions of consent as an attachment to the class 1 application ("the indicative conditions") were therefore also filed by AEH Group on 1 April 2010. 15 Mr Whealy states that the objectives of the amended development application are, first, to obtain the removal of the deferred development consent commencement conditions that all remediation works be completed prior to the commencement of construction works. And second, to allow for the inevitable subdivision of the already approved and proposed development scheme into a combination of community title and strata lots, which is necessary to enable the staged remediation, demolition and construction of the proposed works.

16 In particular, he states that the amended architectural and community title and strata subdivision plans incorporate the staged development proposed, including the indicative conditions, as well as provide additional information concerning the staged development. The development is now sought to be staged in four land parcels rather than ten. This is to promote flexibility in the remediation, demolition and construction of the various stages. Accordingly, the community title and strata subdivision plans detail the creation of four titled allotments. 17 The amended architectural drawings illustrate how the remediation, demolition and construction process across the site is to be staged and detail the temporary access measures that will be implemented in the early stages of the development before the later stages of the proposal. 18 Finally, reliance is placed on the additional expert reports because: (a) the Methodology Report prepared by Tasi Moraitis provides detail on the subdivision proposal to create a community comprising aged care facilities, a medical centre, residential units, commercial/retail units, motel facilities, a cultural centre, restaurant facilities and a community centre;

(b) the Construction Management Plan provides a detailed examination of how the remediation, demolition and construction processes are proposed to be carried out on the site;

(c) the Additional Supplement to the RAP responds to the council's concerns about the staged remediation, development and occupation of the proposed development; and

(d) the letter from Mr McFarland to Mr Hobbs confirms Mr McFarland's opinion that the RAP is sufficient to meet the objectives of the remediation process to enable the site to be developed for the proposed land uses. 19 While not the subject of evidence, the AEH Group told the Court that the staging of remediation and construction and the progressive manner of subdivision and title to enable stage sale and use of the development permitted the development to be undertaken with a measure of progressive cash flow. The Court was further told that the present holding costs for the applicant were in the range of $50,000 per month and that financing for the development would be prejudiced or imperilled if the applicant was required to fund all of the remediation costs up front. Funding was an issue because, according to the applicant, banks were adverse to taking security over contaminated land. Hence staged remediation and development would permit the applicant to obtain financing secured against progressively rehabilitated and developed land. The council did not object to this information being put to the Court.

20 The AEH Group relied on two planning submissions by Don Fox Planning Consultants, dated May 2009 and April 2010. These submissions were to the effect that there was no impediment to the staged construction and remediation proposal in either the development application or the proposed amended development application. This opinion was supported by both the independent site auditor, Mr Ross McFarland, and by the contamination consultant engaged by the AEH Group, URS. 21 URS were the authors of the RAP dated 11 June 2008. URS issued a supplement to the RAP, dated 15 April 2009, which included further details regarding the regulatory context and approvals process, the proposed staging of the remedial works and the proposed environmental management protocols to be implemented. On 15 April 2010, an Additional Supplement to the RAP was provided by URS containing further information in response to council's concerns raised in its report of 8 September 2009, which accompanied the notice of determination. In each report, no impediment was raised to the AEH Group's proposed staged development. 22 The AEH Group also relied on various Interim Opinions prepared by Mr Ross McFarland (dated 27 June 2008, 5 May 2009 and 20 April 2010 respectively), who opined that: (a) the RAP was adequate for the objective of remediating the site to a level suitable for the proposed uses (27 June 2008);

(b) provided the works proposed in the RAP and its supplement were closely managed, the proposed remediation strategy should result in a site that would be suitable for its intended use and noting that, as site auditor, he would only provide his Site Audit Statement and supporting documentation when he was provided with adequately scientifically defensible information allowing him to independently verify the suitability of the site for its intended sensitive uses (5 May 2009); and

(c) upon consideration of the additional information provided in the URS Additional Supplement to the RAP, his opinion had not changed from his earlier Interim Opinions that the RAP was sufficient to meet the objectives of the remediation to enable the site to be beneficially redeveloped for the land uses nominated in the proposed development. Council's Evidence 23 The council did not adduce any evidence in support of its opposition to the application.

Statutory Framework 24 Clause 55 of the Regulation provides that: 55 What is the procedure for amending a development application? (1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development. (3) If the development application is for: (a) development for which concurrence is required, as referred to in section 79B of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body. 25 Section 39(2) of the Land and Environment Court Act 1979 ("the Act") provides that: 39 Powers of Court on appeals (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. 26 The term "development" is defined to mean in s 4 of the EPAA as (emphasis added): development means:

(a) the use of land, and (b) the subdivision of land, and (c) the erection of a building, and (d) the carrying out of a work, and (e) the demolition of a building or work, and (f) any other act, matter or thing referred to in section 26 that is controlled by an environmental planning instrument,

but does not include any development of a class or description prescribed by the regulations for the purposes of this definition. 27 The term "subdivision of land" is relevantly defined in s 4B(1) of the EPAA as: 4B Subdivision of land

(1) For the purposes of this Act, subdivision of land means the division of land into two or more parts that, after the division, would be obviously adapted for separate occupation, use or disposition. The division may (but need not) be effected: (a) by conveyance, transfer or partition, or (b) by any agreement, dealing, plan or instrument rendering different parts of the land available for separate occupation, use or disposition. Consideration

28 The relevant power to amend or vary a development application is contained in cl 55 of the Regulation and that power is available to the Court by reason of s 39(2) of the Act.

29 In Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292 (at [6]-[10]) Jagot J summarised the approach to applications of the present kind. Her Honour stated: 6 In Ebsworth v Sutherland Shire Council Talbot J summarised the various approaches that have been taken to applications to amend plans. One limit on the power available under cl 55 has been consistently recognised - that the Court has no jurisdiction to entertain an original development application. The criteria used to determine whether an amendment converts an application the subject of appeal into an original application, however, has varied (see, for example, Ebsworth v Sutherland Shire Council at [33]).

7 At [40] in Ebsworth v Sutherland Shire Council , Talbot J observed that: It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate. 8 I also consider that a broad approach to both the scope and application of cl 55 is appropriate. Clause 55 enables any application to be amended or varied with the agreement of the consent authority at any time prior to determination. An amendment or variation, as cl 55(2) contemplates, may result in change to the proposed development. The extent of change able to be authorised by agreement of the consent authority or by the Court exercising that function on appeal (and which does not result in the conversion of the application into an original application) will depend upon the facts of the particular case (including, for example, the nature of the site and the nature and characteristics of the proposed development).

9 The availability of the power is to be determined having regard to the beneficial and facultative nature of the provision. That is, I consider that cl 55 ought to be construed so as to give "the widest interpretation which its language will permit" ( Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 at 260-261 per McHugh J referring to Holmes v Permanent Trustee Co of New South Wales Ltd (1932) 47 CLR 113 at 119 per Rich J).

10 The question whether the power should be exercised in a particular case (that is, should the Court, exercising the functions of the consent authority agree to the amendment or variation sought) is also to be answered having regard to the beneficial purpose of the provision. The factors relevant to that question will vary depending upon the circumstances in which the application is made (including, for example, the time at which the application is made and the reasons for making the application). 30 In posing the question of whether the power under cl 55 of the Regulation was available on the facts before her, Jagot J reformulated the test as follows (at [16]) (emphasis added): 16 Mr Graham for the Council submits that the test to determine whether the changed development converts the application into an original application is whether the proposed development is "substantially the same" as the development the subject of the development application lodged with the Council (prior to its first amendment). That test has been applied in some cases, as the discussion in Ebsworth v Sutherland Shire Council discloses. I do not consider that the "substantially the same" formula (apparently derived from the modification power in s 96) reflects the full extent of the power available under cl 55. I prefer to ask whether the development now proposed is an amendment or variation of the application, recognising that an amendment or variation may result in change to the proposed development, but that the Court has no jurisdiction to entertain an original application . 31 Her Honour held that while the amendments or variations proposed by the applicant in that case would lead to a "changed development" they did not convert the application into an original application because "the essence" of the development remained the same. Accordingly, the amendments did not fall outside the scope of cl 55 and there was power to agree to the amendment or proposed variation. 32 While her Honour recognised that cl 55 does not extend to allowing the Court, on a merits appeal, to entertain an original development application, Jagot J nevertheless was at pains to emphasise that the beneficial and facultative clause ought to be construed so as to give it the widest possible interpretation that its language would permit (at [6] and [9]). 33 The test in Radray has been subsequently adopted and applied in this Court (Seyffer v Shoalhaven City Council (2006) 149 LGERA 19 (at [22)). In Pepperwood Ridge Pty Ltd v Newcastle City Council [2007] NSWLEC 19 Talbot J said (at [33]-[35]): 33 The reasoning I adopted lies between the alternative positions taken by Bignold J in Ervin Mahrer . This is apparent from what I said at [37] in Ebsworth:- [37] Applying the reasoning of Bignold J in Ervin Mahrer and Elali , qualified by what I said in Urbis and stated above, it is open for the Court to look at the proposal before and after the proposed amendments to ascertain in a broad sense whether in truth they are properly to be regarded as changes or alterations to the development regarded as an overall concept, rather than taking an approach that involves a quantitative assessment of the variations to determine whether they are substantial by using some empirical formula to ascertain the degree of change. 34 In Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292, Jagot J followed the broad approach adopted in Ebsworth. Dealing with the powers of the Court available under Regulation 55, Her Honour preferred to ask whether the development now proposed is an amendment or variation but that the Court has no power to entertain an original application. 35 I do not therefore propose to undertake a quantitative assessment of the variations to determine whether they are substantial. …

34 Accordingly, I propose to apply the formulation of the test for the enlivening of the power in cl 55 as that set out in Radray. 35 The AEH Group submits that the amendments or variations proposed do not convert the overall development concept into a new or original development and that as a matter of fact and degree "the essence" of the present development remains the same. In particular, the addition of the subdivision plans do not, of themselves or in combination, change the development from that which has always been proposed and from that which the council has expressly purported to grant consent for in the notice of determination. 36 The AEH Group further submits that the uncontroverted evidence is that the staged model is appropriate in order to remediate the site. It is also financially beneficial and facultative given the holding costs and funding concerns by reason of the contaminated nature of the land. The subdivision, inextricably linked as it is to the staged remediation and development of the site, must be viewed in this context. 37 When pressed, the council did not cavil with the fact that what is now proposed by amendment was, save for one critical feature, "the essence" of the development that had always been in its consideration.

38 That critical feature is the inclusion of the proposed subdivision plans. It was the council's submission that because the subdivision was amenable to development consent under the EPAA this, purely as a matter of statutory construction, rendered the application a new or original development application. This was so notwithstanding that in the AEH Group's application form "subdivision" had been ticked, because the fact was that no subdivision plans or proposals had been included along with the application for the council to assess.

39 Section 78A of the EPAA permits an entity to apply to a consent authority for consent to carry out "development". The community subdivision contemplated by the applicant in the amended application is clearly a "subdivision of land" and therefore "development" as defined in ss 4 and 4B of the EPAA, to which s 78A applies.

40 However, in my view, that is not the end of the matter for the purpose of cl 55 of the Regulation. If it were, then it would logically follow that whenever a development application was amended or varied in a manner that engaged sub-paragraphs (a) through to (f) of the definition of "development" in s 4 of the EPAA, irrespective of how minor that amendment or variation was, the application would become a new development application automatically falling outside the purview of cl 55.

41 Such a construction runs contrary to the broad approach required be followed both as to the scope and application of cl 55 articulated in Radray. I therefore do not accept the proposition contended for by the council that the mere fact that the amended development application involves the subdivision of land is of itself sufficient to repel the application of cl 55. 42 I accept that the amendments proposed by the addition of the subdivision plans are, when viewed in the context of the development application as a whole, an integral element of a staged remediation and development of the site, the staged nature of which the council did not take any issue with for the purpose of the motion. As the AEH Group submitted, notwithstanding that no subdivision plans were included in the current development application, it was always its intention, as notified to the council in its development application form, that the application was to be for, amongst other things, "subdivision".

43 I agree with the applicant that it is fanciful for the council to suggest in relation to the current development application that subdivision is not necessary in order for the development to proceed. I am also inclined to agree that while not a matter of assessment by the council, subdivision was likely to have been a matter within its contemplation when approving the application. In light of the inclusion in the development, for example, of a motel and aged care facility, it cannot realistically be said by the council that community subdivision was not required. For the feasibility of the development, subdivision is essential. 44 The development application, even in its amended form, remains a development application for the demolition of the disused Camden High School buildings, the remediation of the contaminated lands, the construction of multi-unit dwellings, the construction of self-contained seniors living dwellings, the construction of a residential care facility, the construction of a motel, the construction of a restaurant, the construction of a cultural and community centre, the construction of a medical centre, the construction of ancillary shops and the construction of associated car parking and the completion of landscaping works. That is to say, it remains "in essence" the same, and not a new, development.

45 As the applicant submits, the physical form and configuration of the development for which consent was sought and given remains the same in the proposed amended development application. The use mix is also the same. Thus as a matter of fact and degree the proposed development is no different to that which has been already assessed and approved, albeit subject to conditions, by the council. Rather, the changes at issue concern the sequencing or staging of the remediation and construction and the progressive manner of the subdivision both facultatively and beneficially enables the staged use of the development. 46 I therefore find that the amendments, although undoubtedly creating a "changed development", have not converted the application into an original or new development application. I therefore do not consider, having regard to the particular circumstances of this case, that the changed development constituted by the material sought to be relied upon by the AEH Group falls outside the scope of cl 55 of the Regulation. Consequently, I am satisfied that power exists to grant leave as sought. Should the cl 55 Power be Exercised in This Case? 47 Notwithstanding the availability of the power to permit the amended application, a discretion is nevertheless retained as to whether that power ought to be exercised by the Court. It is to this issue that I now turn.

48 The council accepted the positive discretionary arguments put by the applicant in relation to the question of whether the cl 55 power should be exercised. Furthermore, it did not raise any negative factors that would weigh against the granting of leave. 49 In my view, there are a number of factors that weigh in favour of the granting of leave to the AEH Group. These are: (a) the council is not able to point to any detriment it might suffer if the amended application is permitted;

(b) the proceedings do not presently have a hearing date, indeed they do not yet have a first return date. In this regard the AEH Group has acted without delay; (c) the applicant has offered to pay the council's reasonable costs with respect to the additional expenses to be incurred by reason of any grant of leave, although the force of this offer is, as is discussed below, somewhat blunted by the operation of s 97B of the EPAA;

(d) the unchallenged expert evidence is that a staged model of development and remediation is environmentally appropriate;

(e) it will facilitate the publicly desirable result of remediation of contaminated land;

(f) it will permit a sizable development to be undertaken with financial security;

(g) if a further and separate development application was to be lodged for subdivision this would cause further holding costs to be incurred by the applicant; and (h) given the basis of the class 1 appeal, a further and separate development application would likely result in a further appeal to the Court, such an outcome being neither sensible nor resulting in the just, quick and cheap resolution of the real issues of either the present class 1 proceedings or any future proceedings (s 56 Civil Procedure Act 2005). 50 I therefore propose to grant the leave sought to rely upon the material referred to in orders 1-3 of the notice of motion. Costs 51 The AEH Group acknowledges that if the Court considers the amendments to be other than "minor" it must pay to the council its costs occasioned by reason of s 97B of the EPAA.

52 The council submitted that if leave were granted by the Court, that the amendments could not be described as "minor" for the purpose of s 97B. This was ultimately, and appropriately, accepted by the AEH Group. This is because on any view, the amendments cannot be classified as "minor" (see Futurespace Pty Ltd v Ku-ring-gai Council (2009) 169 LGERA 45 at [42]-[43]). 53 The effect of s 97B of the EPAA is that this Court must make an order for the payment by the AEH Group of those costs of the council that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. In this regard s 97B overtakes the costs considerations articulated by Jagot J in Radray (at [23]-[24]). Orders 54 The orders of the Court are as follows: (1) leave is granted to the applicant to rely on the following amended architectural plans prepared by Playoust Churcher Architects in the proceedings: (a) DA 2.7(F) Indicative Staging Plan - LG1 + LG2 April 2010

(b) DA 2.8(F) Indicative Staging Plan - Ground April 2010

(c) DA 5.1(A) Construction Management Plan - LG1 + LG2 April 2010

(d) DA 5.2(A) Construction Management Plan - Ground April 2010 (2) leave is granted to the applicant to rely on the following community title subdivision plans prepared by Tasy Moraitis of Denny Linker & Co in the proceedings: (a) Admin Deposited Plan Administration Sheet 23 March 2010 SHT-01

(b) Admin Deposited Plan Administration Sheet 23 March 2010 SHT-02

(c) Admin Deposited Plan Administration Sheet 23 March 2010 SHT-03

(d) Sheet-01 Location Plan 23 March 2010 Location

(e) Sheet-02 Detail Plan (in 2 sheets) 23 March 2010 Ground Ground Level Boundaries

(f) Sheet-03 Detail Plan (in 2 sheets) 23 March 2010 Lower Lower Ground Level Boundaries Ground

(g) Sheet-04 Community Property Plan 23 March 2010 Ground Community Property Lot only Comm (in 2 sheets) Ground Level Prop (h) Sheet-05 Community Property Plan 23 March 2010 Lower Community Property Lot only Ground (in 2 sheets) Lower Ground Level Comm Prop

(i) Sheet-01 Location Plan 23 March 2010 Location

(j) Sheet-02 Detail Plan (in 2 sheets) 23 March 2010 Ground Ground Level Boundaries

(k) Sheet-03 Detail Plan (in 2 sheets) 23 March 2010 Lower Lower Ground Level Boundaries Ground

(l) Sheet-04 Community Property Plan 23 March 2010 Ground Community Property Lot only Comm (in 2 sheets) Ground Level Prop

(m) Sheet-05 Community Property Plan 23 March 2010 Lower Community Property Lot only Ground (in 2 sheets) Lower Ground Level Comm Prop

(3) leave is granted to the applicant to rely on the following additional information: (a) Camden High School Redevelopment Community Scheme Subdivision Methodology Report, prepared by Tasy Moraitis;

(b) Construction Management Plan prepared by KDM & Associates, dated 20 April 2010;

(c) Additional Supplement to Remediation Action Plan prepared by URS, dated 15 April 2010; and

(d) a letter from Mr Ross McFarland to Mr Keith Hobbs titled "Interim Opinion No 3 - Auditor Review of Additional Supplement to Remedial Action Plan for the Former High School in Camden", dated 20 April 2010. (4) pursuant to s 97B of the EPAA the applicant is to pay the costs of the council incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of this notice of motion.

(5) the exhibits are to be returned, with the exception of Exhibits A and C.

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