Barr Property and Planning Pty Ltd v Cessnock City Council

Evidence

1. Barr read a number of affidavits of Ms Kliese which annexed a vast volume of material primarily containing the documents which would form the development application if amended. The affidavits further outlined the procedural history of the matter in the Court. Unfortunately, the evidence adduced did not identify in any meaningful way what development, in fact, comprised the application currently pending before the Court for which leave was sought to amend.
2. To assist in the determination of that issue I have had to resort to the Statements of Facts and Contentions filed by the Respondents in the proceedings and the Statement of Facts and Contentions in Reply filed by Barr.
3. The proposal is summarised in Part 1 of the Council's Amended Statement of Facts and Contentions filed 30 April 2021 and I adopt that statement without repeating it here. Apart from disputing statements contained in Part 1 of the Council's Statement of Facts and Contentions, Barr in its Statement of Facts and Contentions in Reply to the Second Respondent generally did not disagree with the statement of the proposal except in so far as it at [1.2] stated: Paragraph 1.2 is not agreed. The development application has seven phases. The first phase is the subdivision of the site into 6 super-lots and 1 environmental conservation lot. The subsequent six phases comprise of the subdivision of each super-lot into industrial lots.
4. What was proposed (including staging/phasing) in the development application presently before the Court was set out in Drawing 004A.
5. Further, the affidavits of Ms Kliese (including their vast annexures), apart from repeating the orders sought in the Notice of Motion, did not particularise in any readily ascertainable manner the particulars of the amendment sought by Notice of Motion. However, in the written submissions of senior counsel for Barr on the Notice of Motion the proposed amendment was described in [28]-[30] as follows: [28] It is now intended to adjust the proposed development with stage 1 comprising the subdivision of 16 industrial lots, 1 lot for a substation, 1 environmental conservation lot, and a residue lot with earthworks/clearing/remediation on the residue lot. This development would show a concept plan over the site with the following information; • Concept development for 5 stages identifying a 40 lot subdivision which would include 38 industrial lots, 1 lot for a substation and a lot containing E2 conservation land and: a. An eastern intersection approximately 230 metres from the eastern boundary of the site on to John Renshaw Drive; b. A western intersection opposite the existing mine access on to John Renshaw Drive; c. Two points of access to the adjoining development to the east which marry up with the approved road location for the adjoining subdivision. • Stage 1 of the development would include the following: a. The subdivision of 16 industrial lots, 1 lot for a substation, 1 environmental conservation lot, and a residue lot. b. Construction of an intersection with John Renshaw Drive approximately 230 metres to the west of the common boundary with the adjoining site to the east. c. Clearing of the entire site in a staged fashion in line with the BDAR requirements. d. Remediation of the contamination of the entire site to be removed and placed in a containment cell in stage 1. e. Bulk earthworks for stage 1 together with any bulk earth works for the delivery of the substation, placement of the relocated power lines on the site and any temporary works required for the borrowing or storing of fill for the delivery of the first 16 industrial lots. f. Construction of all roads and services within the stage 1 development including two roads providing access to the adjoining site to the east. [29] In this regard, there is no change proposed to the overall outcome of the stages and the general lot configuration remains the same. Accordingly, the Motion seeks to amend the applicational [sic] primarily in relation to form as opposed to any substantial change in substance. [30] The amendment to a 'concept development application', consistent with Ambly, would permit a change to the nature of the development but retain the same overall essence as the originally proposed [sic].
6. The proposed amendment in so far as it related to stage 1 of the proposed amended development application was set out in Drawing 005A attached to those submissions and reproduced below:

Applicant's submissions

1. The Applicant submitted that the power to amend conferred by cl 55 of the Regulation should be viewed as being beneficial and facultative: Ebsworth v Sutherland Shire Council [2005] NSWLEC 603 at [40].
2. Further, the terms "amended" or "varied" used in cl 55 are to be given their ordinary meaning. The ordinary meaning was identified by Moore J in Ambly Holdings Pty Ltd v City of Sydney [2016] NSWLEC 38 at [10]-[11] as: [10] Amendment, it would seem to me to be reasonable to conclude, constitutes tinkering with or adjustment of a development proposal by moving walls around and changing layouts and other things of that nature, that being an amendment to that which is originally proposed. [11] Variation, on the other hand, it seems to me, to be given any separate work to be done encompasses the possibility as is here proposed for not merely the change of design but change of the nature of the development provided its overall essence is capable of being regarded as the same.
3. The Applicant submitted that taking into account those considerations, the question to be asked is whether the overall essence of the development remains the same notwithstanding the amendment or variation.
4. The Applicant contended that the essence of the development remained the same in the proposed amended development application for six reasons: 1. The development application remains the subdivision of industrial land into industrial lots; 2. It involves the construction of a single intersection; 3. It comprises the clearing within the footprints of lots 101-1177; 4. It involves a remediation component applicable to that part of the development application comprised in stage 1; 5. It involves bulk earthworks; and 6. It involves the construction of roads and services within the area of stage 1.
5. Therefore, it was submitted, whilst there will not be as many lots or as much clearing, the facts and circumstances of the case support a finding that the overall essence will be the same. That part of the development which is not proposed to be incorporated in stage 1 will be encapsulated in a concept development application for the whole of the land of which stage 1 will be part.

Findings

1. The development application lodged with the Council was for a single development consent. That single development consent, albeit identified to be conducted in stages or phases, was to produce a completed development of the whole of the site and all infrastructure as a single package. What the Applicant now proposes is to provide a much-reduced form of development. Stage 1 will be completed and released prior to the completion of the balance of the development on the land. The balance of the development of the land will be subject to a concept plan and subject to later development applications. The change proposed by the amendment is significant. Whilst completion of the totality of the concept plan, or the completion of the development of the balance of the site area through separate and discrete development applications, may produce the same ultimate development as that presently proposed, the process for the provision of the whole is markedly different. The changes will effect material changes to the manner of assessment of the development application. By the staging of the development, the consideration of impacts and the provision of infrastructure would likely give rise to different considerations in the assessment for a multi staged development than those considerations that would arise in the assessment of a total single development application (as is the development application in its current formulation).
2. In effect, if the amendment were allowed, the consent authority would be required to start again and determine whether what is now proposed in stage 1 would be sufficient to accommodate the impacts of that stage developed in isolation. It would also be necessary to determine whether, and at what stage, future development applications would trigger the requirement for a future infrastructure and determine whether and how such future infrastructure will be delivered without the certainty of a development application.
3. Whilst I do not mean to suggest by any means that such a proposal is incapable of consent or would not warrant consent, I do not consider in this case that it is appropriate that such an application be dealt with by the consent authority in the first instance as a development application. The lodgement of an application (such as that now proposed by amendment) would permit the process of development assessment anticipated by the EP&A Act, to be undertaken before any appeal within the processes of the Court in the current appeal.
4. To permit an amendment of the magnitude that is sought in this case short circuits the envisaged assessment process. I find that such a significant change as proposed should not be undertaken in the context of an existing Court appeal for a different form of development rather than progressing in the usual course of a development application lodged with the consent authority.
5. For that reason, the Notice of Motion should be dismissed.
6. In addition to the reasons outlined above, I also make the following observations on the current application to amend.
7. Clause 55(2) of the Regulation provides: (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must include particulars sufficient to indicate the nature of the changed development.
8. Further, paragraph 91 of the Court's practice note in relation to Class 1 appeals makes provision for the submission of evidence to accompany any application to amend in the following terms: 91. Other than amendments sought during the hearing of the appeal, leave to rely on an amended development appeal application including amended plans is to be sought by notice of motion, accompanied by a short affidavit in support that: (a) provides particulars sufficient to indicate the precise nature of the amendments proposed; (b) identifies any amended plans by date and plan revision number; (c) identifies the facts or circumstances which prompted the application for leave and when they came to the attention of the applicant; (d) identifies the respects in which the amendments lessen the environmental impact of the development and/or otherwise lead to an improved community outcome; (e) identifies why granting leave to amend the application would promote the just, quick and cheap resolution of the proceedings; (f) discloses if any additional documents (eg. a BASIX certificate for the amended development) are required to support the amended application and, if so whether those documents have been, or are to be, obtained; (g) discloses the applicant's position on any additional costs that the consent authority may incur as a consequence of the amendment; and (h) identifies the potential impacts on the hearing dates and the applicant's position on the adjustments to the timetable that would enable the hearing dates to be maintained if possible. If practicable, the affidavit should not exceed 3 pages in length (excluding annexures).
9. As observed above, the application to amend was significantly deficient in both a statement as to the particulars of the amendment sought and an identification of the development application to which the amendment was to apply. Notwithstanding attempts during the course of oral address to achieve some understanding of these particulars from senior counsel for the Applicant, at the end of the hearing of the Notice of Motion the extent of the changes and the nature of those changes had only been identified in extremely high level and broad terms.
10. The requirement in cl 55 of the Regulation and the requirement in the Court's practice note requires more than merely providing a bulk amount of documents without some accompanying analysis of the changes that those documents are intended to render. In this Notice of Motion the Applicant, having failed to do so, prevents any meaningful assessment of the proposal to amend and the changes that would flow from such amendment.
11. For that reason alone, in the circumstances of this case, I would decline to exercise the discretion pursuant to s 39(2) of the LEC Act to agree to the amendment.
12. Even taking the proposed amendment at this high level unparticularised fashion I would, as indicated above, decline to exercise the power under s 39(2) to agree to the amendment.

Conclusion and orders

1. For the reasons outlined above, I determine that the Notice of Motion is to be dismissed. Accordingly, the Court orders that: 1. Notice of Motion filed 6 August 2021 by the Applicant is dismissed; 2. The Applicant is to pay the Respondents costs of the Notice of Motion; and 3. The exhibits are returned. The exhibits are to be collected from my Associate within 7 days of the making of this order.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 October 2021