Benyon v City of Canada Bay Council

Benyon v City of Canada Bay Council - [2021] NSWLEC 122 - NSWLEC 2021 case summary — Zoe

Registrar's decision

The Applicant's notice of motion dated 8 October 2021 heard by the Registrar sought the following: 1. The Applicant is granted leave to file and serve an amended Class 1 Application within 14 days and the amendment shall be consistent with those documents annexed to the Affidavit of George Hayek dated 8 October 2021. 2. The hearing listed on 10 and 11 November 2021 is vacated. 3. The matter is listed for a section 34 conciliation conference on 10 November 2021. 4. The Applicant is to pay the Respondent's costs thrown away by reason of the amendments as assessed or agreed.
Two affidavits of Mr George Hayek solicitor dated 8 October 2021 and 13 October 2021 were before the Registrar filed in support of the Applicant's notice of motion. These are summarised below at [9] and [13] below respectively.
The Applicant submitted to the Registrar that the significant amendments were to address a number of contentions such as 5, 6 and 8 with the reduction of a whole storey, changes to floor space ratio (FSR) and the changes are intended to substantially address the Council's contentions. The Applicant advised that a number of documents would be provided in due course such as a BASIX certificate, a s 55 report on land contamination inter alia.
The Council opposed the notice of motion. The s 34 conference was held on 17 August 2021. Sufficient time to file such a notice of motion was then available and to keep the listed hearing dates. The motion having been filed late and incomplete in that further documents are to be provided means that the ability of the application to be renotified, a matter agreed to be necessary by the Applicant, cannot be done unless the whole package of amended documents has been received.
Following argument the Registrar found: … I am refusing the motion. I am not satisfied that this is a complete application before the Court and something which the Commissioner will assist the Court in determining this application. It is also very close to the hearing, by everyone's submissions and the evidence that's been put before me today. I do not think that it should be allowed, so the motion is refused.

[4]

Review application

The notice of motion dated 26 October 2021 before me seeks the following orders: 1. The Court having reviewed the decision made by the Registrar on 19 October 2021 makes the following orders: (a) The decision of the registrar of that date is set aside. (b) The Applicant is granted leave to amend the Development Application to rely on: i. Architectural Plans at tab 1 of exhibit GH of the affidavit of George Hayek sworn 26 October 2021; ii. Clause 4.6 variations relating to height and floor space ratio at annexure GH05 to the affidavit of George Hayek sworn 8 October 2021; iii. Statement of Environmental Effects and appendices, specifically landscape plans, urban design report, Geotechnical Desktop Study, arborist report, waste management plan, preliminary site investigation, design verification statement, and stamped BASIX plans and DCP compliance table at tab 2 of exhibit GH of the Affidavit of George Hayek 26 October 2021; and iv. Apartment design guide compliance table at tab 3 of exhibit GH of the Affidavit of George Hayek sworn 26 October 2021; v. SEPP 65 Design Principle Statement Report at tab 4 of exhibit GH of the Affidavit of George Hayek sworn 26 October 2021; vi. BASIX Certificate at tab 5 of exhibit GH of the Affidavit of George Hayek sworn 26 October 2021; vii. NatHERS Summary Certificate at tab 6 of exhibit GH of the Affidavit of George Hayek sworn 26 October 2021; viii. Detailed Environmental Site Investigation at tab 7 of exhibit GH of the Affidavit of George Hayek sworn 26 October 2021; ix. Traffic and parking report at tab 8 of exhibit GH of the Affidavit of George Hayek sworn 26 October 2021; and (c) The hearing listed on 10 and 11 November 2021 is vacated; (d) The matter is listed for a section 34 conciliation conference on 10 and/or 11 November 2021; (e) The Applicant is to pay the Respondent's costs thrown away by reason of the amendments to the Development Application as assessed or agreed pursuant to section 8.15(3) of the Environmental Planning and Assessment Act 1919 [sic]; and (f) Costs.

[6]

Mr Hayek's affidavit dated 8 October 2021

Mr Hayek, solicitor for the Applicant, swore an affidavit dated 8 October 2021 in support of the notice of motion filed by the Applicant on 8 October 2021. It annexes the orders made by the Registrar on 2 June 2021; the Council's Statement of Facts and Contentions (SOFAC) dated 10 June 2021; the orders made by the Registrar on 24 August 2021 following a s 34 conciliation conference on 17 August 2021; a series of architectural plans in accordance with which the Applicant sought leave to amend the Class 1 application; an amended statement of environmental effects and clause 4.6 variation relating to the FSR of the proposed development; and a letter sent to the Council on 8 October 2021 referring to his client's proposal to amend the application and the hearing then listed for 11 October 2021.
Mr Hayek noted that the amended plans, statement of environmental effects and clause 4.6 variations were aimed at addressing the Council's SOFAC. The table on page 3 of the affidavit outlines Mr Hayek's observations on what issues and contentions the amendments address. The development was to be amended in the following ways: 1. Reduced from 5 storeys to 4 storeys. Accordingly, the height of the development is reduced from 16.9 to 16.3 metres (includes roof top communal open space and access) and an amended clause 4.6 variation is provided. This addresses Council's contention 1 in relation to the height of the building vis-à-vis the development control plan (DCP) requirements. 2. FSR of development is reduced from 1.67:1 to 1.29:1 and an amended clause 4.6 variation is provided. This addresses Council's contention 2 in relation to the proposed FSR vis-à-vis the DCP requirements. 3. The setback to the southern side boundary on the Tennyson Road frontage of the development is amended from 0 metres to 6 metres. This addresses Council's contention 4(b) and (c) in relation to the zero-metre side setback. 4. The number of apartments has been reduced from 64 to 49. The dwelling mix has been amended as follows: 1. 1 Bedroom: 15 (30.6%) from 11 (17%) 2. 2 Bedroom: 22 (44.9%) from 42 (66%) 3. 3 Bedroom: 12 (24.5%) from 11 (17%) The current clause 4.6 variation is no longer required. This addresses Council's contention 6 in relation to dwelling mix. 1. The bin presentation area is located within building B of the development. This addresses Council's contention 8(a)(3) in relation to the bin presentation area. 2. Increase to the communal open space located on the roof top to 61.6% of the site area. This addresses Council's contention 4(k) and (m) and 8(e)(4) in relation to roof top communal open space.
Mr Hayek noted that, in light of the new material, it is unlikely that there will be sufficient time for the parties to attend to a number of issues before the hearing dates as set down for 10 and 11 November 2021. He believed that the hearing dates should be vacated and that either 10 or 11 November should be used for a s 34 conciliation conference based on the amended application. He sent a letter to the Council's solicitor to this effect on 8 October 2021.
The statement of environmental effects referred to 20 appendices but apart from appendices K, L and M they were not otherwise annexed.

[7]

Mr Hayek's affidavit dated 13 October 2021

Mr Hayek's affidavit of 13 October 2021 outlined the history of the proceedings. He notes that at the direction hearing on 24 August 2021, the matter was listed for further directions. The Applicant sought leave to file a notice of motion to amend the Class 1 application. The Council did not object to the proposed orders nor did the parties seek that the matter be set down for hearing. The Registrar made further orders other than those previously requested by the parties and set the matter for hearing on 10 and 11 November 2021. No usual orders were made in relation to service of evidence, joint reporting or expert conclaves and those matters referred to in the Class 1 Practice Note at par 35 and Sch E. On 21 September 2021, the Registrar made orders that the filing and service of the notice of motion be adjourned until 5 October 2021 and listed for 11 October 2021. Mr Hayek notes that other than some minor delays, the matter has proceeded according to the orders of the Court. The notice of motion dated 8 October 2021 was filed only three days late. Had the Applicant filed and served its notice motion by 21 September as originally ordered, and if the hearing was on 28 September 2021, the parties would not have had sufficient time to allow Council to notify the amended plans and prepare for the hearing on 10 and 11 November 2021. Mr Hayek deposed that the hearing dates of 10 and 11 November were not achievable. He deposed that it was in the interests of the just quick and cheap resolution to proceedings that a s 34 conciliation conference be ordered.
Exhibit B contains an email from Mark Cottom, solicitor for the Council, to Laetitia Chattat and George Hayek on 20 September 2021 in which Mr Cottom tells the solicitors for the Applicant that the Council consents to the proposed timetable variations it reserves its position on the Applicant's motion. The Council expressed, through its solicitors, its concern about the effect that any granting of leave to rely on amended plans would have on the hearing dates in November, particularly when the amendments may need to be renotified.

[11]

Chronology

On 7 May 2021, the Applicant filed class 1 proceedings with the Court.
The application was listed to be before the Registrar for directions on 9 June 2021.
On 2 June 2021, the Applicant made an online court request with the consent of the Council, seeking orders that the directions hearing on 9 June 2021 be vacated and the matter be listed for a section 34 conciliation conference on 17 August 2021.
Further, on 2 June 2021, the Registrar made the following orders: 1. The Council is to file and serve its SOFAC by 9 June 2021. 2. The Applicant to file and serve its reply to the SOFAC by 30 June 2021. 3. The matter is listed for a section 34 conciliation on 17 August 2021: and 4. The matter is listed for directions on 24 August 2021.
On 10 June 2021, the Council served its SOFAC..
On 16 July 2021, the Applicant served its reply to the SOFAC.
On 17 August 2021, the Applicant and the Council participated in a section 34 conciliation conference. No agreement was reached.
Further to the orders of 2 June 2021, order 12 of those orders required that, the parties having concluded conciliation were to comply with the following by 19 August 2021: Each party is to notify the other party in writing of the name of any expert upon which they propose to rely, the area of expertise of the expert and the issues to be addressed by the expert 2 business days prior to the second directions hearing, in the form of a draft completed information sheet or in such other form as may be agreed between the parties.
Neither party complied with order 12, since it was understood by each side that the Applicant would be applying to amend the development application.
On 24 August 2021, the Applicant foreshadowed that, following, and considering the s 34 conciliation conference, it intended to file and serve a notice of motion seeking leave to amend the development application. According to Mr Cotton's affidavit dated 18 October 2021 the Applicant sought a five-week adjournment allowing four weeks in which to amend the application with the matter to be listed a week later. No order seeking a hearing date was requested by either party. The Registrar made the following orders: 1. The matter is listed for hearing on 10 and 11 November 2021 via MS Teams. 2. The notice of motion to amend the development application was to be filed and served by 21 September 2021. 3. The notice of motion is listed on 28 September 2021; and 4. The matter is listed for further directions on 28 September 2021.
On 20 September 2021, the Applicant with the consent of the Council, made an online court request to adjourn the filing and service of the motion to amend the development application by two weeks to 5 October 2021 and list the motion for hearing on 11 October 2021.
On 21 September 2021, the Registrar made those orders.
The Applicant filed and served the notice of motion on 8 October 2021.
On 11 October 2021, the parties participated in a directions hearing concerning the motion. The Applicant requested leave to amend, that the hearing dates of 10 and 11 November 2021 be vacated, and those dates be used for a further section 34 conciliation conference. The Registrar did not accede to that request and made orders that the notice of motion be stood over to 19 October 2021.
On 19 October 2021, the Registrar refused the Applicant leave to amend the development application. No further orders were made.
On 28 October 2021, the Council made an online court request seeking the matter be relisted for directions on 29 October 2021 and that further orders be made for the further management of the case for the hearing.
On 29 October 2021, the Registrar made orders requiring the parties' experts to participate in joint conferencing and file their respective joint expert reports by 5 November 2021, as well as other orders such as the service of proposed conditions of development consent, on 9 November 2021.

[12]

Principles for review

The parties identified the well understood principles which apply in such a review application citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [5]-[9] (Hodgson JA, Ipp JA agreeing); Groeneveld v Wollongong City Council (2009) 168 LGERA 260; [2007] NSWLEC 149 at [11]-[14] (Preston CJ).
In Elanor Investors Limited v Sydney Zoo Pty Ltd (No 2) [2019] NSWLEC 121 at [40], I identified the relevant principles in reviewing a registrar's decision under UCPR r 49.19 according to the authorities stating: Relevant principles in reviewing a registrar's decision identified in Tomko v Palasty (No 2) by Hodgson JA at [6]-[9] (Ipp JA agreeing) adopted by me in Shoal Bay [Shoal Bay Developments Pty Ltd v Port Stephens Council (No 2) [2015] NSWLEC 36] at [4] are as follows: [6] I agree that a review of a decision of a registrar is not an appeal, subject to s 75A of the Supreme Court Act; and that in such a review a court must exercise its own discretion. [7] In my opinion, this discretion extends to a discretion as to whether, and if so how, to intervene; and in my opinion, there is an onus on a person seeking to have a court set aside or vary a registrar's decision to make out a case that the court, in the interests of justice, should exercise its discretion to do so. [8] In the case of a decision on practice or procedure, this will normally require at least demonstration of an error of law, or a House v The Queen error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. [9] In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The Queen error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing.

[13]

Applicant's submissions

To ensure this matter continues to progress in an efficient manner the Applicant wishes to resolve the development application by making all reasonable amendments that the Council seeks. The granting of leave will not unduly prejudice the Council nor will it be a waste of the Court's time and resources. Granting the notice of motion will facilitate the just, quick and cheap resolution of all matters in dispute between the parties as contemplated by s 22 of the Land and Environment Court Act 1979 (NSW) (LEC Act) and potentially obviate the need for the Applicant to commence fresh proceedings.
The amendments sought to address each contention raised by the Council in its SOFAC filed on 9 June 2021. Contentions 1 ,2 and 3 refer to excessive height, FSR and visual bulk and scale. The proposed amendments reduce the development from 5 to 4 storeys, the FSR is reduced to 1.67:1 to 1.29:1 (the control is 0.75:1). The visual bulk has been reduced. Contention 4 has been addressed by a setback to the southern side on the Tennyson Road frontage of the development from 0 to 6 meters. The number of units has been reduced from 63 to 49. These changes address view sharing raised in Contention 5. The new bedroom mix is compliant with the Canada Bay Local Environmental Plan 2013, addressing Contention 6. Addressing Contention 8, the Applicant wishes to amend the location of the bin room and provide a functional roof top communal open space, increasing the area to 61%.
The plans in relation to which leave is sought are exhibited to the affidavit of Mr Hayek filed 26 October 2021.
Additional documents reproduced in Ex C have also been prepared to tender in evidence at the hearing: a. An amended Statement of Environmental Effects; b. A Design Verification Statement11 of a registered architect to satisfy SEPP; c. An Apartment Design Guide Compliance Table; d. A SEPP 65 Design Principle Statement Report; e. An Urban Design Plan; f. A BASIX Certificate and BASIX Plans; g. A NatHERS Summary Certificate; h. An environmental site investigation to satisfy SEPP 55; and i. A Traffic and Parking Assessment Report.
The stormwater contention is being addressed by a plan which is able to be provided to the Council tomorrow (5 November 2021).

[14]

Council's submissions

The Council opposes the notice of motion and submits that the Registrar's decision ought be undisturbed.
Fundamentally, the Applicant's case for review turns upon an assertion that the (now) proposed amendments to the development application address each contention raised by the Council in its SOFAC. This assertion, with respect, is not particularly accurate: 1. It remains the case that the proposed development exceeds the development standards for building height and floor space ratio. Although the amended clause 4.6 variation requests would need to be assessed if leave were to be granted to amend the development application, it is noteworthy that the overall height of the development has only been reduced by 600mm. The building height control will still be exceeded by 4.3 m. The permissible FSR is 0.75:1. This is apparently in order to facilitate rooftop communal open space throughout the development, which is not part of the current Application Class 1 plans and accordingly its impacts (including on neighbours) has never been assessed. This is despite the current plans already complying with the minimum 25% standard in the Apartment Design Guide. While the setback to the southern side boundary on the Tennyson Road frontage of the development has been increased to 6 metres, this does not address other concerns raised in contention 4. 2. No amended view loss assessment (Contention 5) has been provided in relation to the Amendment Motion or the Review Motion. In the absence of same, the proposed amendment of the development application is deficient and the related impacts on neighbours (which were the subject of submissions to the proposal)8 cannot be assessed. 3. Contention 6 (dwelling mix) may be resolved, subject to assessment by Council's town planning expert. 4. Contention 7 (public interest) would only be resolved if the other contentions were to be resolved. 5. Various points need to be made about contention 8 (insufficient information): 1. Contention 8(a) may be resolved, subject to assessment by Council's contamination expert. 2. The Operational Waste Management Plan filed with the Court on 5 August 2021 has not been amended. This is despite the relocation and enclosing of the proposed bin presentation area, and reduction in the number of residential apartments proposed by 15 units. As noted in contention 8(b), on-site waste collection is ordinarily required for residential developments of this nature - yet the applicant has not addressed this requirement or justified a departure from it. 3. Despite the reduction in the number of residential apartments, the basement car park remains identical to the plans which were filed with the Application Class 1. The traffic and parking concerns in contention 8(c) simply are not addressed. 4. Similarly, no amended stormwater plans have been provided despite the changes to all apartment buildings. Again, contention 8(d) is simply not addressed. 5. Neither the supporting affidavit nor the amended landscaping plans themselves particularise what amendments are proposed. Whether the amendments, once properly described, resolve or narrow contention 8(e) would remain to be seen. 6. Rather than reducing the issues in contention regarding insufficient information, the proposed amendments to the development application would increase the number of issues. Despite the reduction in the number of proposed residential apartments and building footprint, the following documents filed with the Application Class 1 have also not been amended (or at least been the subject of written advice provided by the relevant consultants to assist the Court in determining the Amendment Motion): 1. Access Design Assessment Report; 2. Adaptable Housing Assessment Report; 3. BCA Design Assessment Report; and 4. Strata Plan.
In addition to the above, leave should not be granted to amend the development application because to do so would result in vacation of the hearing dates. Paragraph 11 of Mr Hayek's affidavit of 8 October 2021 is entirely correct that the amended plans will require renotification. This is now even more the case given the delayed review motion.

[15]

Consideration

The principles for reviewing a decision of the Registrar are identified above. I do not need to identify error in the Registrar's decision.
The somewhat unusual circumstances of this application arise because of the delay in making the application to rely on amended plans by the Applicant and not seeking to have this review motion heard promptly. The timeframes for all the steps in the proceedings are identified in the chronology above. That the statutory timeframes for filing the review motion were complied with is immaterial. It is the Applicant's responsibility to ensure that matters that are essential to its case being heard are able to be dealt with by the Court in a timely manner. The hearing of the appeal is presently to take place four working days from today. On any view this review application is late.
An important matter to note in relation to the context of this review application is that the Applicant's motion is effectively an application to rely on amended plans, not merely a review of the Registrar's decision denying that. The material before me is far more voluminous and deals with additional matters beyond those in evidence before the Registrar. The material filed in support of the review application, the third affidavit of Mr Hayek dated 26 October 2021 included a substantial exhibit of two volumes of documents. This material was far more substantial than the material before the Registrar on 19 October 2021, being the exhibits to Mr Hayek's earlier affidavit sworn 8 October 2021. The Applicant has made essentially the same submissions as were made to the Registrar but has now completed all the documents the subject of an application to rely on amended plans it said to the Registrar it would provide in the future. It also relies on case management principles such as s 22 of the LEC Act to argue that the most efficient means of dealing with this matter is to grant its notice of motion.
The amendment of plans sought is substantial. Contrary to the Applicant's submissions, for the reasons given by the Council the amended plans do not satisfy a large number of the Council's contentions and raise additional issues not presently in the contentions. Having reviewed the Council's SOFAC and the amended plans exhibited to the latest affidavit of Mr Hayak in the course of the hearing I accept the Council's submissions that the proposed amended plans do not address several of the important contentions raised by the Council and raise more questions that the Council will have to consider, for the reasons given above at [43] by the Council. Given the nature of the changes it is unreasonable to expect that Council officers will be in a position to adequately deal with all these new matters at another s 34 conference if one were to be held next Wednesday 10 November 2021.
I have reviewed the transcript of the argument before the Registrar on 19 October 2021. The Registrar's finding was clearly well within the orthodox exercise of her discretion. The Applicant essentially wishes the Court in this review to ignore what occurred by continuing with the preparation of additional material and asserting that case management principles such as s 22 of the LEC Act support its notice of motion.
This case is entirely unlike Samcourt Pty Ltd v Inner West Council (No 2) [2017] NSWLEC 169 relied on by the Applicant where in a review application the Court did vacate hearing dates. The application to vacate was consented to by the council and the amendment of the plans arose from joint reporting by the experts engaged in that appeal. That is not the case here.
Taking into account all the matters outlined above and balancing the interests of justice, it is not appropriate to exercise my discretion to set aside the decision of the Registrar made on 19 October 2021. The Applicant's notice of motion dated 26 October 2021 is dismissed.
Whether the Applicant pursues its appeal on the basis of plans it no longer wishes to press is a matter for it to consider. If the appeal is to be discontinued prompt notification to the Court is encouraged.

At a glance

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Judgment (17 paragraphs)

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