Cullen Feng Pty Limited v Woollahra Council

By its Notice of Motion filed on 13 November 2001 the Applicant in pending class 1 proceedings in the Court (being a development appeal against the Council's refusal of a development application to carry out development at the premises known as 69 O'Sullivan Road Rose Bay) seeks leave to rely upon amended plans at the hearing of the appeal which has been fixed for 7, 8 and 9 January 2002. Those hearing dates were allocated by the Registrar of the Court at an earlier callover in the proceedings on 25 September 2001.

The amended plans that the Applicant wishes to rely upon are referred to in the Motion and are the same plans that were lodged with the Council on 25 July 2001 by the Applicant but were not received or accepted by the Council and were returned to the Applicant the next day on account of the fact that the Council's planning servant, who had assessed the development application (which had been lodged with the Council at the end of the preceding year) had completed her report, and the submission of the amended plans was obviously seen to be inconvenient and untimely.

Soon thereafter, by letter dated 30 July 2001, the Applicant was informed that the Council's determination of the development application had been to refuse consent for a number of reasons, (24 in number) specified in the letter notifying the Applicant of the Council's decision.

In the Applicant's appeal to the Court which was filed on 27 July 2001 (a few days before the Council's determination and hence was an appeal against a deemed refusal) the class 1 application noted, and annexed, a copy of the amended plans, being the same amended plans which the Applicant had belatedly sought to submit to the Council in the circumstances I have just mentioned.

Although the matter was before the Court on a number of callovers, it was not until the last callover last week that the Registrar was informed that the Council was opposed to the Applicant's reliance upon the amended plans. The Applicant's Solicitors became aware that the Council would object to reliance upon the amended plans when it received the letter dated 19 October 2001 from the Council's Solicitors. That letter stated inter alia that the Council had not agreed to the application being amended under the Environmental Planning Assessment Regulation, cl 55 (the Regulation) or to the Applicant relying upon amended plans pursuant to Pt 13 r 13(b)(1) of the Land and Environment Court Rules.

The Council's Solicitors went on to say that the Applicant was being put on notice that the Council would object if the Applicant attempted to rely upon amended plans at the hearing. At the same time, Council furnished a Statement of Issues raised by the Council, which as the letter pointed out, related solely to the original plans which had been lodged with the Council with the development application late in 2000.

It was when the Registrar was informed that there was an issue between the parties concerning the Applicant's reliance upon the amended plans that the Applicant's Motion, filed a week earlier, was listed for hearing before me today. The Motion is supported by the affidavit of Mr Gary Green, the Solicitor for the Applicant, which essentially chronicles dealings between the Applicant and the Respondent in the case from the time the application was lodged on 27 November 2000 to the present time.

The Motion is also supported by an affidavit sworn by Mr Bruce Goldsmith who is the consultant town planner to the Applicant in these proceedings. In his affidavit he details his involvement in the project including consultation prior to the lodgment of the development application to the Council in November 2000 and his preparation of the statement of environmental effects which accompanied the development application.

In par 7 and following of his affidavit sworn 20 November 2001, Mr Goldsmith examines the original development application plans by comparison with the amended plans before, and in the course of, expressing a number of opinions concerning the relationship between the two sets of plans. In par 8 he says, "I have come to the conclusion that the application as amended is substantially the same development as originally propounded because the characteristics of the proposals are extremely similar." He goes on to identify a number of those characteristics, including the basement car parking feature of the proposal, the fact that the original and amended proposal involve a residential flat building, proposing three residential units having the same or similar building footprint, similar height, similar setbacks, similar floor plans, similar overall building height.

In pars 9 and 10, he expresses the opinion that the amended proposal leads to, in his opinion, a reduction of impact upon surrounding properties and he concludes by expressing the opinion in para 12 by saying, "in my opinion the amended plans describe what I consider to be substantially the same development as the original proposal".

In opposing the Motion, the Council relies upon the affidavit sworn 16 November 2001 by Nika Fomin who is the team leader of the Council's planning and development division, who was the Council officer who assessed the development application lodged by the Applicant. In par 6 Ms Fomin notes the circumstances in which the Applicant sought to submit amended plans to the Council and her decision to have the plans returned to the Applicant because inter alia by that date she had already completed her assessment report on the development application.

Thereafter in her affidavit Ms Fomin details her consideration of the proposed development as originally proposed and as set forth in the amended plans which she seems to acknowledge to be the same set of plans that the Applicant sought to submit to the Council unsuccessfully on 25 July 2001. She acknowledges that the schedule of amendments contained with the amended drawings as required by cl 55 of the Regulation describe the principal differences between the original proposal and the amended proposals reflected in the respective sets of plans.

In par 11 and following, she expresses her opinions based upon her comparison of the two sets of plans. In par 11 she states her opinion that the amended plans depict a development that "would have a substantially different environmental impact from" the original plans and in particular she notes a number of aspects dealing particularly with the roof form, the materials, eg the use of masonry at the street facade of the proposed building, the amount of excavation required and the configuration of the basement carparking.

She expresses the opinion in par 12 that the amended plans depict a development that is "not substantially the same". In par 13 she expresses the view that a town planner of the Council would be required to expend a similar amount of time in assessing the amended plans that was required to be undertaken in the assessment of the original plans (but she does not say what that assessment involved in terms of time or effort). In par 14, Ms Fomin discusses the logistics if re-advertising of the proposal were required in accordance with the Council's Development Control Plan for Advertising and Notification of Development Applications (the DCP), and finally in par 15, Ms Fomin states that the amended plans have not been fully assessed by the Council and the Council has not had an opportunity to decide whether or not the Council would oppose the granting of consent to the development depicted on the amended plans.

I have been considerably assisted by the clear and concise submissions advanced by Ms Duggan on behalf of the Applicant and Ms Hughes on behalf of the Respondent Council. Their submissions more than adequately identify the relevant principles upon which the Court exercises its jurisdiction and power in respect of amended plans for development applications, the subject of pending development appeals. As the submissions point out, the ultimate exercise of the Court's discretion involves not only the exercise of the power to allow amendment, but also discretionary considerations dealing with matters of fairness and case preparation and costs involved as a consequence of exercising the power to allow an Applicant to rely upon amended plans at a development appeal.

In the present case, it is to be noted that the Motion was filed nearly two months before the fixed hearing date, so that it is reasonable to assume (and no evidence to the contrary has been given) that case preparation, in terms of expert reports and the like, has not yet been undertaken, although I infer from the filing of the Council's Statement of Issues in the case (which is a comprehensive document raising 24 points) that the Council's Solicitors and planning staff have been involved in that process. As I indicated earlier it is clear in preparing that document the Council's Solicitors and planners have focussed attention exclusively upon the original plans and not the amended plans.

Having regard to the proposal (as depicted in the original plans and what I can conveniently call the amended plans) I am of the opinion that the development depicted in the amended plans is substantially the same as the development depicted in the original plans. Such a conclusion, I think, is inevitable from a consideration of the two sets of plans. In so concluding, I do not dismiss or reject out of hand the opinion that Ms Fomin has given in par 11 of her affidavit that in her opinion, assessing the amended plans for the proposal leads her to a view that there will be different, or substantially different, environmental impacts of the amended proposal compared with the original proposal.

I take that opinion to be a foreshortened and foreshadowed result of the assessment process that obviously will need to be undertaken if leave is given to the Applicant to rely upon the amended plans. I do not accept the opinion as being crucial or determinative of the question whether the amended plans depict an amended proposal or a proposal substantially the same or not substantially different as all of those variant descriptors have been used in the cases dealing with the question of amended plans being entertained at the hearing of a development appeal.

Having concluded that the amended plans truly amend the proposal, the question of power is not in issue, but the question of the exercise of the relevant discretion is. In this respect, Ms Hughes on behalf of the Council has advanced an impressive argument as to why, as a matter of discretion, the Court should not grant leave to the Applicant to rely upon the amended plans. These matters in Ms Hughes' submissions do raise important matters of policy for the practice and procedure in this Court in its class 1 jurisdiction, but ultimately I have concluded that the Court should exercise in this particular case the discretion in favour of the Applicant by allowing it to rely upon the amended plans.

The case is somewhat unusual inasmuch as the amended plans came into existence, at least so far as their being submitted to the Council is concerned, almost at the same time that the Council was about to give its determination of the development application which it had received some eight months earlier. No doubt, as I mentioned earlier, the receipt of the amended plans was untimely and inconvenient, and that explains why the Council returned the amended plans to the Applicant.

However the Council did receive the plans and Ms Fomin at least gave them superficial consideration: see par 6 of her affidavit. Nonetheless, she decided to return them to the Applicant and not even keep a copy with Council's file. Be that as it may, the Council, which a few days later determined the development application by refusing consent, nonetheless became aware of the Applicant's reliance upon the amended plans when it received service of the Applicant's class 1 application appealing against the then Council's deemed refusal of the development application.

The result of this process is that this is not a case where within a week or two before a fixed hearing date of a development appeal the Applicant belatedly seeks to amend its proposal. On the contrary, the facts of the case indicate that the amendments were within the receipt and knowledge of the Council at about the time that it determined the development application on the original plans.

Of course no criticism can be made of the Council for its determination of the application on the original plans. That is what the Council processed, involving public notification and advertising, and that is what it assessed. However this proper conduct does not eliminate the fact that nonetheless, the Council has been aware from the time the Applicant served the Council with the appeal process that the Applicant was seeking to rely upon the amended plans, and the Council has had abundant opportunity to consider those plans, at least at planning officer level.

Accordingly, although the Motion brought by the Applicant two months before the hearing date means that it is going to involve added pressures and new pressures on the Council in the preparation of its case if it maintains its opposition to the development proposal, such an impost is not in my opinion, given the history of the matter (which is somewhat unusual), either unreasonable or unfair.

Moreover, notwithstanding the preliminary assessment that Ms Fomin has made of the differences between the original set of plans and the amended set of plans, my consideration of the comparison between the two sets of plans indicates that the amended proposal is substantially the same, albeit having some changed features that obviously will require some reassessment by the Council's planners. I should note that the decision of the Council refusing development consent to the Applicant's development application was taken at delegated authority level. The matter has not apparently been before the Council as a collegiate body.

A matter that Ms Fomin has raised and Ms Hughes has taken it up in the course of her able address concerns the Council's DCP for advertising and notification of development applications and other applications. It is clear that that DCP not only applies to development applications but also to amendments, modifications and the like. Section 3 deals with advertising of development applications and s 3.6 deals specifically with advertising of amendments made under cl 48A of the Environmental Planning Assessment Regulation 1994 (which is the predecessor to cl 55 of the current Regulation). It provides, Where an Applicant makes an amendment to a development application to which this plan applies prior to the application being determined, re-advertising will only occur where the responsible Council officer is of the opinion that the proposal as amended is not substantially the same as the original proposal.

I should make a number of comments about that provision. Firstly, it is to be noted that it refers to an amendment before the application has been determined and that is not the present case. Secondly, the re-advertising requirement applies only where the responsible Council officer is of the opinion that the proposal as amended is "not substantially the same" as the original proposal.

The case has been argued on the basis that the Court is called upon to exercise the discretion vested in the relevant Council officer. I am not entirely sure that that joint submission is correct, but in any event, and notwithstanding Ms Fomin's views, I do not think that the cl 1 of Section 3.6 operates in the present case to require re-advertising of the amended plans. This is not for the reason that I have simply substituted my opinion for Ms Fomin's but that I am of the view that it would not be reasonably open for the responsible Council officer to form the view consonant with cl 1 of Section 3.6 of the DCP that the proposal as amended, is otherwise than substantially the same as the original proposal.

I intend no disrespect to Ms Fomin in so concluding. I take her affidavit (and she was not cross-examined) read as a whole, to be saying that she thought that re-advertising was required because the amended proposal was not substantially the same as the original development because she factored into that criterion, her opinion dealing with the relevance of the environmental impact of the amended proposal compared with the environmental impact of the original proposal. For the reasons I have earlier given, I do not believe that that test or formulation accurately reflects the required comparison between the original and amended proposals for the purpose of considering the questions of the power and discretion to permit amendment of the development application plans.

Accordingly, re-advertising is not required in the present case, although the Council's DCP goes on to contain provisions in Section 4 for notification for DAs and in -for notification for amendments. It would appear that the Council can take action pursuant to Section 5 of the DCP within the available time between now and the hearing date, fixed for 7, 8 and 9 January 2002.

Ms Hughes advanced the submission that the Court, in exercising its discretion in favour of the Applicant in the present case should impose terms, namely to vacate the hearing dates, to require the Applicant to pay the Council a sum equivalent to new development application fees as compensation for the Council's need to reconsider the amended plans and also to pay the Council's costs of re-advertising.

In view of my reasons earlier announced in support of the conclusion that re-notification in accordance with the DCP is not required in the present case, two of the terms sought by Ms Hughes to be imposed on any leave granted by the Court do not arise. I do not understand any real costs to be involved in providing letters to objectors in accordance with Section 5 of the DCP. This means that the only term relevant for the Court to consider is Ms Hughes' submission that the Council should be compensated for the need to reconsider the amended plans at this stage of the case.

It is true, as Ms Hughes' submission points out, that such a term was imposed in my decision in Ervin Mahrer and Partners v Strathfield Council (No 2) (2001) 115 LGERA 259. However, the circumstances of that case were quite unlike the circumstances of the present case. In particular, in that case the council had incurred extensive costs in preparing for an earlier fixed hearing of the appeal based upon the original development application plans, which costs or expenses most probably were significantly wasted in the light of the applicant's decision to amend the development application in that case. No such litigation prehistory similar to that in Ervin Mahrer applies in the present case and I am of the opinion that this is not a case that requires the imposition of a term requiring the payment of monetary compensation to the Council.

As I have earlier indicated, the Council has most probably not to date incurred costs in expert witnesses preparing for this present appeal. Notwithstanding Ms Fomin's opinion on the consequences of reassessment of the amended plans and the time and effort likely to be involved in that process, in my judgment the amendments to the original proposal are such that the re-appraisal and re-assessment can be undertaken without undue time, effort and expense.

For all the forgoing reasons, I grant the leave sought in par 1 of the Applicant's Notice of Motion filed on 13 November 2001 and I impose no terms on that grant of leave. However, I do make some procedural directions with the consent of Ms Duggan on behalf of the Applicant and Ms Hughes on behalf of the Council to assist the Council in its reassessment tasks. Accordingly I give the following directions by consent.

1. The Applicant shall serve and file its expert evidence by 21 December 2001.
2. The Council shall have until 31 December 2001 to file its expert reports.
3. The Council shall file and serve its Statement of Issues in relation to the amended plans by 10 December 2001.

Following delivery of my reasons for judgment granting leave to the Applicant to rely upon the amended plans referred to in its Notice of Motion filed on 13 November 2001, Ms Duggan on behalf of the Applicant has sought an order for costs in favour of the Applicant on the Motion. This application has been opposed by Ms Hughes on behalf of the Council.

In my judgment, there should be no order as to costs in the matter. It is true, as Ms Duggan has aptly submitted that the Council could have granted its approval to the Applicant relying upon the amended plans. Nonetheless, the Applicant has come to Court for leave to rely upon amended plans at a time some two months before the hearing. It will impose obligations on the Council's planning staff to reassess the application and although the Council has been on notice for some four months of the Applicant's intent to rely upon the amended plans, such reliance required either the consent of the Council in the first instance or the leave of the Court in the alternative. That leave having been only recently sought and obtained, I can see nothing in the Council's behaviour in resisting the application for leave as to warrant an order of costs in favour of the successful party who has satisfied the Court that it should exercise its discretion to grant leave in its favour. The circumstances and the history of the case do not in my opinion warrant an award for costs on the Motion. In relation to the costs of the Motion, there is no order as to costs.

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