Cachia v Manly Council

CASES CITED: Cachia v Manly Council NSW LEC 1035 Coshott v Woollahra Council [1996] NSW LEC 256

APPLICANT Mr A Pickles, barrister LEGAL REPRESENTATIVES: RESPONDENT Ms C Schofield, solicitor Pikes Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication. 1 SENIOR COMMISSIONER: On 11 February last I gave a merit decision in this matter (see Cachia v Manly Council NSW LEC 1035). In that decision, I determined a preliminary question concerning the location of the first floor setback that was appropriate on the northern boundary of the site for the dwelling proposed by the applicant. That decision was given in the context of a vigorous contest between the parties about: o the acceptability of the impact of the proposal on the views of two properties (those to the immediate rear and to the south-west); o the presentation of the proposal in its streetscape, o non-compliance with the rear setback requirements of the Manly Development Control Plan; and o a number of other numerical non-compliances with this Development Control Plan. 2 That decision resolved the issues of the setback at the first level on the northern side and the intrusions into the rear setback requirements of the Development Control Plan. As a consequence of that decision, for the applicant to proceed further, it will be necessary, if the proceedings are to continue, for the applicant to file an amended development application.

3 The consequence of that and of the date of filing of the original appeal is that the provisions of s 97B of the Environmental Planning and Assessment Act 1979 are triggered for consideration if the applicant were to be given leave to file an amended development application. Section 97B deals with the issue of costs that are payable if such an amended development application is filed with the consent of the Court. The provision contains a number of steps. The first is that there has to be an allowing by the Court of the filing of an amended development application. The second, but not necessarily requiring to be dealt with sequentially with the first, is a consideration of whether the amendments that would be comprehended by such an amended development application constitute "a minor amendment" or not.

4 If both of those steps are taken, that is the applicant files an amended development application and the Court determines that the amendments are other than a minor amendment, s 97B(2) requires, in mandatory terms, that the Court must make an order for the payment by the applicant of "those costs of the consent authority that were incurred in respect of the assessment of, and the proceedings relating to, the original development application the subject of the appeal".

5 If such an order is required, that order may be in one of two forms, in my view.

6 First, if the parties reach an agreement as to a sum to be nominated in such an order, I am of the view that the Court is obliged to make an order reflecting that sum and has no obligation to go, nor opportunity to go, behind the terms of the agreed amount and make any inquiry as to its appropriateness or not.

7 If there is not an agreed amount for incorporation in such an order, the Court, in my view, must make the conventional costs order that such costs are to be as agreed or assessed.

8 The section makes a provision for regulations to provide circumstances in which the subsection does not apply but, as best I am able to ascertain, there are no such exceptions at the present time.

9 It is appropriate, before I turn to the question in this case as to whether the amendments that are contemplated by the applicant (in plans which have been lodged with the Court [but which have not been filed] and certainly with respect to which I have not granted consent to the filing of those plans as an amended development application), would constitute a minor amendment to the plans that were originally before me.

10 I have had the benefit of an analysis of those plans and I have had the opportunity both with the assistance of Mr Pickles, barrister for the applicant, and independently in chambers, to consider a comparison between the two sets of plans involved. I note that, for this stage of my inquiry, there are no shadow diagrams provided. That would be a matter of an assessment of qualitative impact of any development application and not, in my view, an assessment (from minor upwards) of the nature of the amendments themselves.

11 There are a multiplicity of amendments. A number of them are necessary consequences of the decision that I gave on 11 February. Others of them are amendments made by the applicant in response to the remaining issues in contention between the parties.

12 With the possible exception of shadow impacts, about which I am unable to express even a preliminary view, and an area of a proposed balcony on the eastern side of the proposed games room on the northern ground floor level of the dwelling (about whether there is some adverse impact on the neighbour to the north is capable of being argued but about which I express no view), it is my opinion that all of the other elements of the amendments are either neutral or ameliorative in their effect.

13 I make that comment because, in the context of these proceedings, if I rule that the possible amended plans do not constitute a minor amendment, the applicant is in a position, should she wish to do so, of taking advantage of State Environmental Planning Policy Exempt and Complying Development Codes 2008 to erect a dwelling on the site consistent with that code. Such a dwelling could be erected in a fashion that would have significantly greater adverse impacts on the neighbours, both to the north, to the west and to the south-west, and the applicant would be able to do so - provided those plans were in accordance with the code - in a fashion that would not provide any ameliorative opportunity for the neighbours.

14 I turn then to the submissions that are made by the parties as to how I should interpret the provision. First, I turn to a submission by Ms Schofield, solicitor for the council, that I should consider that the words 'a minor amendment' permit simply a single amendment to be made. That submission can be disposed of shortly. It is fundamentally inconsistent with the provisions of s 8(b) of the Interpretation Act 1987 that provides that "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form".

15 I am satisfied that that submission is ill-founded and that what I am entitled (and indeed obliged) to do is to assess whether the overall effect of all the amendments constitutes minor amendments to the plan in totality.

16 Mr Pickles took me to two cases involving modification applications pursuant to s 96 of the Environmental Planning and Assessment Act 1979, particularly the provisions of s 96(1A). The words of 96(1A) require the consent authority to be satisfied as to whether the proposed modification is of "minimal environmental impact". I have concluded that this term is of little assistance to me, whilst in this case all of the impacts will either be beneficial or with impacts able to be remedied (if there be such an adverse impact of the natures I have earlier outlined) so that the totality of the plans as possibly to be amended could be described as having minimal environmental impact, I am satisfied that those decisions provide no assistance in the present case.

17 I then turn to consider the opportunities that are provided to use extrinsic material in the interpretation of Acts which is provided for in s 34 of the Interpretation Act, particularly the provisions of s 34(2)(f) to have regard to speeches made to a House of Parliament by a Minister upon the Minister moving the motion for the second reading of the Bill in that house. I have also taken advantage of the opportunity to have a look at the explanatory note or memorandum relating to the relevant Bill, that being permitted by s 34(2)(e).

18 In the case of the Minister's second reading speech on 15 May 2008, the Hon Frank Sartor MP, Minister for Planning, Minister for Redfern-Waterloo and Minister for the Arts, commenced the second reading speech on the bill at p 7695 of the Hansard. In the course of that speech, he dealt with s 97B in the following terms: "The bill provides that in a class 1 appeal before the Land and Environment Court, where the court allows an applicant to amend a development application - other than a minor amendment - the court must order that applicant to pay the consent authority's costs thrown away as a consequence of the amendment. This is to act as a disincentive to applicants seeking to amend their proposals before the court without community consultation or input from councils and other relevant authorities."

19 The Minister's second reading speech provides little assistance to me in my construction of what might constitute a minor amendment (although I note that there has not been a failure of community consultation or input from relevant authorities in this case or from the council itself). The Explanatory Notes to the Environmental Planning and Assessment Amendment Bill 2008 provide no assistance - apart from noting that the provision is included in the Bill.

20 I have considered whether I could find any more appropriate analogy. I have turned, in this context, to the provisions of s 87 of the Local Government Act 1993. This is a provision dealing with the amendment of applications. It says: "An applicant, at any time before the application is determined, may make a minor amendment to the applicant and may amend any matter accompanying the application."

21 I then sought to see whether I could find any judicial determination of what might constitute a "minor amendment" in the context of that provision to provide me with some assistance in considering this application. The only decision I have been able to find is that of Bannon J in Coshott v Woollahra Council [1996] NSW LEC 256 where his Honour was dealing with amendments which had been made to a dwelling and where the neighbour was seeking to have the approval of the council set aside.

22 His Honour notes [there being no paragraph numbering in the copy of this decision which I have available to me] the fact that s 87 of the Local Government Act permits minor amendments without further notification to interested parties. His Honour continued in discussing this matter: ".. It is a matter of degree whether changes are major or minor. In a small project, any change may be major. In a large scale project such as a three or four-storey Vaucluse mansion, the relative effect of change may be minimal."

23 He then continued, shortly after that comment, to say: "In my opinion, the overall effect of the changes were minor."

24 The remainder of his judgment provides no further assistance.

25 It is clear that the matter that I need to determine is one of fact and degree. The words that are used by Bannon J in that Coshott, on two occasions, relates to the (relative or overall) effect of the changes being minor.

26 I am satisfied that it would be appropriate, consistent with what his Honour said in Coshott and consistent with the legislative intention, to have regard not to the number of amendments but, whether in the context of the issues that are pressed by the council, the total effect of the changes are minor or not.

27 In light of the fact that the applicant now has the opportunity to proceed to a development pursuant to SEPP Exempt and Complying Development Codes 2008 [which development proposal, if pursued by the applicant, would have a significantly more deleterious effect on the neighbouring residents than would be an amended application before the Court if made in terms of these plans], I regret that I must come to the conclusion that the amendments in this case are not minor.

28 The nature of the setback of the upper level from the northern boundary and the nature of the alterations to the streetscape façade of the building are both significant amendments, one of which has been required by virtue of my decision of 11 February, the others of which are as a result of the applicant responding not merely to that alteration of the building line but to the streetscape issues raised by the council.

29 Although the internal rearrangement, I accept, could be regarded as minor - in that there are no external consequences. Although there is a complete rearrangement of the internal spaces that, taking into account Bannon J's comments, would have minor effect had there merely been that alteration.

30 Unfortunately, the combination of the alteration at the first floor of the northern setback and the alteration to the front façade treatment in the streetscape, particularly the ameliorative measures of the possible removal of brick columns, roofing and other structures (all matters undertaken in response to the concerns of the council) render the amendments not minor in nature.

31 Therefore, if the applicant were to seek my leave to amend for these facultative and ameliorative amendments, I would be obliged to make an order pursuant to s 97B(2). PICKLES: On that basis then, Commissioner, we don't seek your leave to amend and we would ask you to determine the appeal on the plans that you've had originally before you. That's obviously a matter for you as to whether or not that requires further hearing. You've obviously made a preliminary determination on one of the issues which is possibly the salient one, but whether that requires a further hearing or not it's a matter for you.

COMMISSIONER: Well let me put this proposition to you; I will hear you, as it were, before I drop the hammer. I think you would need to be powerfully persuasive that it would require me to set aside my earlier determination concerning the first floor. I'm not sure whether it is either appropriate or possible for me to do so.

PICKLES: No, indeed, and I doubt whether it's possible to do so. I haven't refreshed reading the judgment, but it seems to me that you've made a decision about what would be an appropriate setback. I wouldn't want to labour the point in trying to argue that the setback that the applicant already had was acceptable in planning terms when it seems to me that your decision is probably not amenable as such.

COMMISSIONER: Not amenable to such re-definition, even with the greatest flexibility of conscience, I would've said, Mr Pickles.

PICKLES: Indeed, so on that basis then, Commissioner, I would ask you to dispose of the appeal. Those are my instructions.

COMMISSIONER: Do you have anything to say about that, Ms Schofield?

32 SENIOR COMMISSIONER: In light of the decision that I have given this morning and the fact that the applicant does not wish to proceed with an amendment to the plans in response to the matters that are contained in that earlier decision, the orders of the Court are that: 1. The appeal is dismissed, 2. Development Application 81/08 for the demolition of an existing dwelling house and the erection of a two-storey dwelling house with basement garage and associated landscaping at 9 Seaview Street, Balgowlah, is determined by the refusal of development consent; and 3. The exhibits are returned.

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