Ebsworth v Sutherland Shire Council

Ebsworth v Sutherland Shire Council - [2005] NSWLEC 603 - NSWLEC 1992 case summary — Zoe

[23]

· Re-site building; · Reduction in height; · Amendment of physical character to enhance historical and cultural heritage; · Creation of focal point to denote arrival to site; · Provision of interface along the whole of the front of the site; · Reduction in bulk of building; · Provision of mix of cladding; · Removal of toilets from basement car park; · Reposition of decks and privacy screens; · Provision of distinct car parks for residential and commercial; · Widening of driveway; · Provision of disabled access to all commercial areas; · Indication of room uses for neighbouring property; · Provision of amended shadow diagrams. 13 Notwithstanding directions made by the Registrar for exhibition of the plans and the receipt of submissions in response thereto, the council does not consent to the applicant relying on further amended plans Issue C and opposes the grant of leave by the Court if that is required. The matter is not currently set down for hearing so that Part 13 rule 16 (b1) of the Land and Environment Court Rules 1996 ("the Court Rules") does not apply. 14 Regulation 55 of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation") is relevant to the amendment of a development application. It provides:- ( 1) A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined. (2) If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development. (3) If the development application is for: (a) development for which concurrence is required, as referred to in section 79B of the Act, or (b) integrated development, the consent authority must immediately forward a copy of the amended or varied application to the concurrence authority or approval body. 15 Regulation 55 is in approximately the same form as Regulation 48A of the EPA Regulation 1994, which was inserted on 25 May 1998. 16 Mr Tomasetti, who appears for the applicant, relies on the power conferred by s 39 (2) of the Land and Environment Court Act 1979 ("the Court Act") which provides as follows:-

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32 In Kanivah Holdings Pty Limited v Burwood Council [2005] NSWLEC 211 I was asked to determine whether new plans formed an amendment. Without making a final determination as to whether the plans could be regarded as an amendment or new set of plans I preferred the council's view that in the circumstances the plans represented a fresh application. The differences in that case related to the number of units, mix of units and number of vehicles to be accommodated. 33 In the light of what appears to be different approaches taken by several Judges of the Court it is appropriate to gather together those conflicting views. They are as follows:- …that scope and extent of the statutory power of amendment created by cl 55 of the Regulation permits a development application "to be changed or altered resulting in an alteration, variation or modification in the proposed development." … do not see any legitimacy in quest of the proper construction of cl 55 to superimpose upon the word "change" appearing in cl 55 of the Regulation the qualification of not being a "radical" change or to superimpose upon the adopted meaning of the word "change" namely "to make different" the qualification of "not being substantially different" ( Ervin Mahrer and Partners v Strathfield Council (No.2) 115 LGERA 259 confirmed in Elali v Campbelltown City Council (2004) 135 LGERA 85 and Rose Bay Afloat Pty Ltd v Woollahra Council and Another (2002) 126 LGERA 36). … in applying that construction (Ervin Mahrer) questions of fact and degree do arise, and in turn, they are to be considered…in the context of the surrounding circumstances of the development application and the category or character of the development. ( Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 147) …the Court is not empowered to entertain amended plans which are so substantially different from the original plans that the development as proposed cannot be said to be substantially the same development as was the subject of the development application ( Dyldam Developments P/L v Holroyd City Council [2001] NSWLEC 204) The Court has no jurisdiction to entertain an original application. The Court cannot entertain an amendment which converts what was before the council into a fresh application. Therefore if amendments convert the original concept into something substantially different from the original development application, the Court does not have the power to consider it (Willoughby Municipal Council v Local Government Appeals Tribunal and Manchil Pty Ltd (1974) 2 NSWLR 415 at 420, per Samuels J; Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd (1974) 2 NSWLR 590 at 598, 602, per Hope JA) . In Cambridge Credit, Hutley JA (at 612) adopted the phrase "differs in any material respect", and the description of the constraint as "not to approve development which differs in any material respect from that described in the development application " , citing Else-Mitchell J in Peter Rommel & Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99 at 107-108. It is also follows that the comparison must be between the development application as originally made and the amendments that are now sought. ( Waite v Blacktown City Council [2004] NSWLEC 157) … the Court…does not have the power to allow an amendment which differs in any material respect from that described in the plans accompanying the development application. ( Chase Property Investments Pty Limited v Blue Mountains City Council [2005] NSWLEC 476). 34 In Ervin Mahrer and Elali and Rose Bay Afloat Bignold J recognised the prospect of a meaning of the statutory power of amendment that was circumscribed or delineated so as to permit only an amendment "which did not convert the prosed development into something substantially different" or fundamentally different in "character" or "radically transformed." 35 If it is necessary to place some boundary or outer limit on the broad view taken by Bignold J, I would tentatively raise two practical criteria that may provide some guidance, although each case will need to be dealt with on its merits as no doubt Bignold J appreciated when he took such an unconstrained view in Ervin Mahrer. The two criteria that could be helpful in considering whether a development application may be amended or varied are:- (1) Whether the development as amended can be regarded as the same development as the one originally proposed in the context of the characterisation of the overall concept and the surrounding circumstance of the development application.

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39 The original plans and the Issue A amended plans may be instructive to assist with understanding of the emerging changes. However I am persuaded that the reasoning of Mason P, as it was applied to the former s 102 in Michael Standley, is equally applicable to the assessment of "amendment or variation" under Regulation 55 so that the comparison to be made is between what it is that is proposed to be amended or varied and the result to be achieved by the amendments or variation. Once a development application is amended or varied then the subject of the development application becomes the changed proposal. 40 It is my view that Regulation 55 is beneficial and facultative and intended to facilitate the making of amendments on two accounts. Firstly to enable the applicant for consent to respond to any issues identified by the council or objectors and secondly to encourage a consent authority to solicit a better outcome. A broad approach to the application of Regulation 55 is therefore appropriate. 41 This is not a case where the overall concept of the proposal is changed or that the structural changes proposed are so radical that no comparison can be made between the original and the amended development as the facts tended to show in Kanivah. Although obviously further and different consideration may be necessary in many respects following the receipt of the Issue C plans, they do not render the proposed development to be so different that the whole process must be recommenced. The underlying idea or concept that will result if the development is approved is a supermarket with an office, shops, residential units and ancillary parking. The configuration of the components is sufficiently similar to raise a comparison that shows a fundamental similarity. It is not substantially different in the sense that I understand Lloyd J considered as a possibility in Waite. 42 Taking account of the whole of the facts outlined above and after considering the changes and variations proposed by the Issue C plans as against the Issue B plans I am satisfied that the Court should, pursuant to the power given by s 39(2), exercise the function and discretion of the council as consent authority under Regulation 55 and agree to the amendment of the Application by allowing the applicant to rely on the Issue C plans. Exhibits A, 1 and 2 are retained as they were taken from the Court file, the remaining exhibits may be returned.

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