Cavcorp Australia Pty Ltd (Cavcorp) has erected a dwelling house on Mrs Cavasinni's land at 27 Nelson Parade, Hunters Hill. Regrettably, the house was not constructed in accordance with the development consent that this Court had granted on 18 May 2010, and had modified on 21 June 2017.
On 15 December 2017, the owner of the neighbouring property at 29 Nelson Parade, Mrs Diab, brought proceedings in Class 4 of the Court's jurisdiction for orders to restrain and remedy the breaches of the development consent as modified, which caused a breach of s 4.2 of the Environmental Planning and Assessment Act 1979 (EPA Act). Mr and Mrs Cavasinni and Cavcorp were named as respondents to these Class 4 proceedings.
The respondents accepted that the house had been constructed in certain respects not in accordance with the development consent, but contested Mrs Diab's claim as to other respects. One of the contested respects was that the development consent did not authorise the construction of the garage and storage room in the Easements for Services that burden Mrs Cavasinni's land. As a matter of fact, the footprints of the garage and storage room do intrude into the Easements for Services by between 0.72 and 0.89 metres. Mrs Diab claimed the development consent did not authorise, while the respondents claimed the development consent did authorise, the intrusion of the garage and storage room into the Easements for Services.
The respondents did, however, accept that the garage and storage room had not been constructed in accordance with the design shown in the approved plans.
In an attempt to regularise the construction of the house, and its garage and storage room, Cavcorp made an application to modify the development consent to Hunters Hill Council (the Council) on 14 September 2018. The plans accompanying the modification application showed the house, and its garage and storage room, as they had been constructed. The Council refused the modification application on 19 December 2019. Instead of appealing the Council's decision, Cavcorp made a further application to modify the development consent directly to the Court under s 4.55(8) of the EPA Act. This course was available as the Court had granted the development consent originally. These proceedings were in Class 1 of the Court's jurisdiction.
As a result, there are two proceedings in the Court: the Class 4 proceedings brought by Mrs Diab to restrain and remedy the breaches of the development consent and the EPA Act and the Class 1 proceedings seeking modification of the development consent.
The Class 4 proceedings were listed for hearing first. On Christmas eve 2019, Mr and Mrs Cavasinni applied to vacate the hearing that had been listed in February 2020 and to adjourn the Class 4 proceedings until after the Class 1 proceedings were heard. I heard that application. I declined to vacate the hearing of the Class 4 proceedings. Instead, I ordered that the question of any breach of the development consent and the EPA Act be heard and determined separately from any other question in the Class 4 proceedings, including the appropriate remedy and relief that should be granted by the Court if any breach be found: Diab v Cavasinni [2019] NSWLEC 204.
The hearing of the separate question in the Class 4 proceedings proceeded before Robson J. In his judgment delivered on 20 August 2020, Robson J found that the house, and the garage and storage room, had been constructed, in numerous respects, not in accordance with the development consent: Diab v Cavasinni (No 3) [2020] NSWLEC 119. With regard to the garage and storage room, Robson J found in [88] that:
"Although the approved plans are not clear, possibly due to their age and the quality of the reproduction now before the Court, from my perusal of the plans and, in particular, the location of the easements, I am of the view that no part of the floor and the walls of the storage room is authorised to be constructed in the Easements for Services."
The orders that Robson J accordingly made included, at [100], determining that:
"(1)(c) The footprints, roofs, eaves and gutters of the garage and garbage storage room as constructed are different to those shown in the approved plans as follows:
(i) the footprints (floor and walls) of the garage and storage room are built in the Easements for Services and intrude into that Easements for Services by between 0.72 and 0.89 metres as depicted in the survey plan dated 23 January 2020 being annexure "A" to the affidavit of Stuart de Nett sworn on 29 January 2020 ('de Nett Survey') in circumstances where:
A. no part of the floor and walls of the garage was authorised to be constructed in the Easements for Services; and
B. no part of the floor and walls of the storage room was authorised to be constructed in the Easements for Services.
(ii) the roof and eaves of the garage extend across the Easements for Services and intrude by approximately 100mm into the Right of Carriageway for the benefit of the property at 29 Nelson Parade, Hunters Hill (as depicted in the de Nett Survey) in circumstances where no part of the garage was authorised to be constructed in the Right of Carriageway."
Next, the Class 1 proceeding seeking modification of the development consent was heard by Clay AC this year. Clay AC gave judgment on 6 July 2021: Cavcorp Australia Pty Ltd v Hunters Hill Council [2021] NSWLEC 1392. Clay AC found that he was minded to approve some of the modifications sought, but not others. This mixed outcome would require Cavcorp to prepare amended plans and conditions of approval to reflect Clay AC's findings. Clay AC made a direction that Cavcorp file agreed amended plans and conditions within 21 days of the date of the judgment.
One of the modifications that Clay AC found he was not minded to approve concerned the construction of the garage and storage room in the Easements for Services. Clay AC quoted paragraph [88] of Robson J's judgment that the approved plans did not authorise the construction of the garage and the storage room in the Easements for Services (at [142]). Clay AC added his own comment that "ordinarily, in the exercise of a planning discretion, one would not expect a consent authority to approve the construction of substantial building structure within an Easement" (at [143]). Clay AC reiterated in [152]:
"Planning is, amongst other things, concerned with the orderly and economic use of land. That is also an element of the public interest. It is hardly orderly planning to approve a substantial building which infringes upon a valuable property right and has the potential, which is not fanciful, to cause a substantial interference in the future. I agree with the observation made by Robson J in Diab No. 3: it would not be expected that a substantial building structure be constructed within the Easement. It would not be in the public interest so to do."
As a result, Clay AC indicated that he would not approve the infringing elements of the garage and storage room as part of the modification application (at [153]).
Cavcorp has applied, by notice of motion filed on 3 September 2021, that Clay AC's order made on 6 July 2021, requiring Cavcorp to file agreed amended plans and conditions within 21 days, be stayed pending further order. That motion came on for hearing on 10 September 2021 before me.
Cavcorp explained that the basis for the application was that it, together with Mr and Mrs Cavasinni, wished to apply to reopen the Class 4 proceedings to reagitate the question of whether the development consent did or did not authorise the construction of the garage and storage room in the Easements for Services. Mr Cavasinni asserted in his affidavit accompanying the notice of motion that, subsequent to Robson J delivering judgment, they had discovered a clearer copy of the approved plans than those referred to by Robson J. These clearer plans, Mr Cavasinni asserted, provide support for an argument to be made that the garage and storage room were in fact approved to be constructed partly within the Easements for Services. Mr Cavasinni said that the respondents wished to apply to Robson J to reopen the Class 4 proceedings to be able to make this argument with a view to persuading Robson J to change his finding that no part of the garage or storage room was authorised to be constructed in the Easements for Services.
At the initial hearing of the motion on 10 September 2021, after discussion, Cavcorp agreed to pursue a different course than that sought in the notice of motion. Cavcorp would apply to amend the modification application being heard by Clay AC so as to delete from the modification application the garage and storage room. Cavcorp would prepare amended plans that would show only the modifications that Clay AC had indicated he was minded to approve and withdraw the modifications regarding the garage and storage room. This would enable Clay AC to dispose of the Class 1 proceedings by approving only those modifications and not the modifications to the garage and storage room. Cavcorp may need to re-apply at a later time for approval of the modifications to the garage and storage room. Cavcorp indicated that it would defer making any such further modification application until after it had made application to Robson J to reopen the Class 4 proceedings.
To facilitate this new course of action, on 10 September 2021, I directed Cavcorp to file by 20 September 2021 any amendment of its notice of motion filed 3 September 2020 so as to apply to amend the modification application to delete the modifications to the garage and storage room; extended the time for filing amended plans directed by Clay AC to the same day, 20 September 2021; fixed the hearing of the amended notice of motion on 23 September 2021; and relisted the Class 1 proceedings before Clay AC on 28 September 2021. I also made directions in the Class 4 proceedings, including fixing the respondents' notice of motion to reopen the proceedings for hearing before Robson J on 24 September 2021 and directing the parties to file and serve an outline of submissions.
Cavcorp has complied with the directions made in the Class 1 proceedings to file the amended notice of motion and amended plans seeking to amend the modification application by deleting the modifications regarding the garage and storage room.
As a result of recent legislative amendments to insert cl 121B(1) in the Environmental Planning and Assessment Regulation 2000 (EPA Regulation), there is now express power to amend a modification application. Clause 121B(1) provides:
"An applicant for modification of a development consent may, with the agreement of the consent authority, be amended by the applicant at any time before the application is determined by lodging an amendment on the NSW planning portal."
Cavcorp's modification application, which was made to the Court, has not yet been determined. Clay AC has indicated, in his judgment, how he is minded to determine the modification application, by approving some modifications and not others, but this indication is not a determination of the modification application. Cavcorp is, therefore, still within time to amend the modification application under cl 121B(1) of the EPA Regulation.
The Council, who is the relevant consent authority, indicated that whilst it did not agree to, it did not oppose, Cavcorp, who is the applicant for modification of the development consent, amending the modification application as sought in the amended notice of motion. The Council did seek an order that Cavcorp pay the Council's costs thrown away as a result of the amendment.
Mrs Diab, who has been joined as a respondent to the Class 1 proceedings, adopted the same position as the Council, of not opposing the proposed amendment of the modification application. She also sought an order that Cavcorp pay her costs thrown away as a result of the amendment.
Where the consent authority does not positively agree, as distinct from not opposing, an amendment of a modification application before the Court, the Court, under s 39(2) of the Land and Environment Court Act 1979, can exercise the Council's function under cl 121B(1) of the Environment Planning and Assessment Regulation 2000 to agree to the amendment of the modification application. I consider it is appropriate for the Court to do so in this case.
The proposed amendments of the modification application are of two kinds. The first kind is to incorporate the changes required by Clay AC in [156] of his judgment. Clay AC indicated that he was minded to approve modifications with respect to the matters in (1) the landscaping in the northern area, (2) the western treatment of the stairs and landing and (4) the privacy treatment of the windows to the western boundary, but not (3) the garage and storage room. He required, however, that Cavcorp prepare amended plans to reflect his findings on these matters. Cavcorp asserts, and the Council and Mrs Diab did not materially contest, that the amended plans proposed in the amended modification application do reflect Clay AC's findings on these three matters. Clay AC can determine, when the matter returns to him, whether the amended plans do in fact address his concerns.
The second kind of amendment to the modification application is to delete the modifications to the garage and storage room. This amendment serves two purposes. It reduces the environmental impacts of the modifications as a whole, as fewer modifications will be proposed in the modification application.
It also overcomes a potential issue of power. The various powers in s 4.55 and s 4.56 of the EPA Act to approve an application to modify a development consent are silent as to whether the application can be approved in part and refused in part. The powers to modify a development consent stand in contrast, in this respect, to the power to determine a development application to grant consent, where s 4.16(4) of the EPA Act expressly permits development consent to be granted for a specified part or aspect of the development for which the consent is sought. Cavcorp noted that it may be that the power to approve only one modification but not another modification sought in the modification application is implied, in the same way that it has been held that the power to approve a modification application impliedly permits modification of a development consent on conditions: see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468; [1998] NSWSC 163.
Cavcorp submitted that this potential issue of power can be avoided by the proposed amendment of the modification application. By withdrawing the modifications to the garage and storage room from the modification application, which Clay AC had indicated he was not minded to approve, and in amending the other modifications to accord with what Clay AC had indicated he was minded to approve, approval can be granted to all of the modifications that now would be sought in the amended modification application.
I consider that it is appropriate to agree to the amendments of the modification application for these reasons. First, the amendments are intended to reflect Clay AC's findings with respect to the modifications he has indicated he is minded to approve. Second, the withdrawal of the modifications to the garage and storage room will lessen the environmental impacts. Third, the withdrawal of the modifications to the garage and storage room overcomes the potential issue of whether there is power to approve some but not all of the modifications sought in the modification application.
With the Court giving the agreement of the consent authority to the proposed amendments to the modification application, Cavcorp can so amend the modification application by lodging the amendment on the NSW planning portal. Upon doing so, the amendment of the modification application takes effect. The applicant will need to file the amended modification application with the Court. This amended modification application will replace the current modification application originally made to the Court. Clay AC will then need to determine the amended modification application when the matter returns before him.
Accordingly, the appropriate course is for the Court to make orders agreeing to Cavcorp amending the modification application as proposed, directing the amendment be lodged on the NSW planning portal and directing the amended modification application be filed with the Court. If difficulties are encountered with lodging the amendment on the NSW planning portal, the matter should be relisted for further directions.
Both the Council and Mrs Diab sought an order that Cavcorp pay their costs thrown away by reason of the amendment of the modification application. There is no express power to make this costs order equivalent to the power in s 8.15(3) of the EPA Act. Rather, the power is the Court's general power to order costs in Class 1 proceedings in r 3.7(2) of the Land and Environment Court Rules 2007. That power provides:
"The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances."
The Council and Mrs Diab submitted that it would be fair and reasonable to order costs because Cavcorp delayed unreasonably in making the application to amend the modification application, causing the Council and Mrs Diab to incur costs in preparing and running their cases with respect to the garage and storage room.
Cavcorp submitted it would not be fair and reasonable to order costs. Cavcorp submitted that the prompt for the application to amend the modification application was Clay AC's judgment. He determined that certain modifications would be appropriate to be approved if amended plans were prepared to reflect his findings, but the modifications with respect to the garage and storage room were not appropriate to be approved, and the plans should be amended to delete the garage and storage room from any approval of the modification application. Cavcorp submitted the amendment of the modification application sought by the amended notice of motion does what Clay AC directed Cavcorp to do.
I consider there is force in Cavcorp's submissions. I do not consider it would be fair and reasonable in the circumstances to order Cavcorp to pay the costs of the Council and Mrs Diab thrown away by reason of the amendment of the modification application, when the amendment is intended to achieve what Clay AC had directed Cavcorp to do.
This deals with the application for costs thrown away by reason of the amendment of the modification application. If the Council or Mrs Diab wish to seek their costs of any part or the whole of the proceedings, application can be made after the proceedings have been concluded in the usual way. My determination that there should be no order as to costs thrown away by reason of amendment of the modification application does not preclude or prejudge any such later application for costs.
The Court orders that:
1. The Court, exercising under s 39(2) of the Land and Environment Court Act 1979 the function of Hunter's Hill Council as the relevant consent authority under cl 121B(1) of the Environmental Planning and Assessment Regulation 2000, agrees to the applicant amending the application for modification of the development consent DA 2008/1096 granted by the Land and Environment Court on 18 May 2010 to rely upon the amended condition in Schedule A and the modified plans and documents in Schedule B, and to delete from the application the plans in Schedule C to the amended notice of motion filed 20 September 2021.
2. The respondent, Hunter's Hill Council, as the relevant consent authority, is to lodge the amendment of the application for modification of the development consent on the NSW planning portal within 7 days of the date of this order and notify the applicant after it has been lodged.
3. The applicant is to file a copy of the amended application for modification of the development consent within 7 days after the respondent has notified the applicant that the amendment has been lodged on the NSW planning portal.
4. In the event the respondent is unable to lodge the amended application on the NSW planning portal referred to in (2) above, the respondent is to notify the Court via Online Court as soon as possible but no later than 14 days of the date of the order and request for the matter to be relisted for further directions.
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Decision last updated: 23 September 2021