Ebsworth v Sutherland Shire Council

Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204; Elali v Campbelltown City Council (2004) 135 LGERA 85 ; Ervin Mahrer and Partners v Strathfield Municipal Council (No. 2) (2001) 115 LGERA 259 ; Kanivah Holdings Pty Limited v Burwood Council [2005] NSWLEC 211 ; Moto Projects (No.2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 ; CASES CITED: North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468; Thomas v Pittwater Council [2003] NSWLEC 19 ; Vacik Pty Ltd v Penrith City Council (NSWLEC, 24 February 1992, unreported) ; Waite v Blacktown City Council [2004] NSWLEC 157 ; Willoughby Municipal Council v Local Government Appeals Tribunal and Manchil Pty Ltd [1974] 2 NSWLR 415

APPLICANT Mr P C Tomasetti (Barrister) SOLICITORS Maddocks LEGAL REPRESENTATIVES:

RESPONDENT Ms E J Ranken (Solicitor) SOLICITORS Pike Pike & Fenwick

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 Talbot ACJ: By Notice of Motion dated 23 September 2005 Adrienne Ebsworth ("the applicant") seeks leave to rely on further amended plans filed and served 19 August 2005 and an order for costs.

2 By Application Class 1 filed 29 December 2004 the applicant has appealed against the refusal by Sutherland Shire Council ("the council") of Development Application No. 03/1552 ("DA No. 03/1552") in respect of "Ancillary Development to Business Premises - Additions and Alterations to Existing Shops and Alteration to Three (3) Existing Residential Units to Create a Total of Nine (9) Residential Dwellings and Strata Subdivision into 17 Lots" on Lot 111 DP 816577, 22-30 Brighton Street, Bundeena ("the land").

3 The applicant has relied on various plans at different stages of the development application and appeal process. They can be summarised as follows:- (1) Plans Issue A lodged in support of the development application. 4 The plans lodged with DA No. 03/1552 on 11 September 2003 provided for one supermarket, two offices, five existing shops, 17 carparking spaces at the rear of the development and ten residential units generally over two levels above the shops and carparking area. The plans relied on the retention of five existing shops arranged in an arcade fashion extending in an easterly direction from Brighton Street.

5 On 23 September 2003 the council exhibited the Development Application and plans for a period of 14 days.

(2) Amended Plans Issue A submitted to council 10 December 2003. 6 The plans were amended to remove Unit 10 at the rear of the site. The following amendments were also made:-

· Provide wheelchair lift to north of site; · Reduce floor level of supermarket; · Re-configure stair setup to rear of site; · Provide turning bays to carparking areas; · Provide wheelchair lift and direct access from carpark for adaptable unit No.7; · Provide upturn to balconies of units 3 and 4; · Provide extendable screen behind upturns of units 1-4 for privacy control; and · Incorporate landscaped features to design. 7 These plans were the subject of a council report assessing the Development Application. The report recommended refusal. The Notice of Determination refusing the Development Application is dated 23 January 2004. The amended plans Issue A were the subject of the Class 1 Application.

(3) Amended Plans Issue B filed and served 3 May 2005.

8 The plans were further amended to address matters raised in the Amended Statement of Issues and included the following amendments:-

· Provide new basement carpark and amend central level tandem and 45 spaces; · Reduce rear section with units 6-8 office & carparking down a further 370mm; · Reduce units 1-5 floor levels by 300mm; · Make supermarket office larger; · Amend roof and hence theme from 'art deco' to 'Noosa style' of architecture; · Square off walls to reflect new architectural theme; · Windows 1 & 2 and street front shops modified to reflect theme; · Provide awning to street & verandah to front shop 2 as per new theme; · Widen access ramps to carparks; · Unit 5 & 6 combined to 1 unit to simplify internal access. · Extend loading dock; · Increase adaptable parking to 6.0 x 3.8; · Amend carspace to class 1A to AS 2890.1 to reduce width; · Note parking usage; · Provide disabled ramp & change floor levels to suit; · Indicate rainwater tank to top level.

9 In summary the amended plans Issue B included a new basement carpaking level under the five existing shops and provided for a different architectural style and treatment for the building, one less residential unit, a slight increase in the overall height of the structure towards the rear of the site and increased the number of parking spaces from 17 to 41.

10 According to the council's town planner Gregory James Hand it was not clear from the plans whether the proposal still consisted of alterations and additions or involved the total demolition of the existing building to allow for the excavation and construction of the carpark.

(4) Further Amended Plans Issue C filed and served 19 August 2005.

11 On 9 August 2005 the hearing dates were vacated so that the applicant could arrange for the preparation of amended plans in response to the preliminary opinion of the Court Appointed Expert, Mr Dickson.

12 The further amended Issue C plans are the subject of the Notice of Motion. The amendments are made in response to issues raised by the council in its Further Amended Statement of Issues and include the following:-

· 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:-

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. 17 Ms Ranken, who appears for the council, refers to a number of cases that apply the 'substantially the same' test to support the submission that the plans filed and served 19 August 2005 are not an amendment to the application but instead form a new proposal/application. 18 In Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204 Pearlman J dismissed an application to rely on amended plans in the context of Part 13 r 16 (b1) of the Court Rules which provides that the applicant cannot rely on amended plans without the consent of the applicant or leave of the Court. The parties in this matter agree that Part 13 r 16 (b1) does not apply, as the proceedings have not been fixed for hearing. I accept that r 16 (b1) does not apply in the present circumstances where the matter has not been set down. Nevertheless s 39(2) of the Court Act allows the Court to exercise all the functions and discretions which the council had under Regulation 55 in respect of the Development Application. 19 In Dyldam, Her Honour applying the 'substantially the same' test said at [6]:- It is my view that 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. I think the Court's jurisdiction is limited to the development application that was before the council and in respect of which the council has refused consent or in respect of which there has been a deemed refusal of consent.

20 Pearlman J relied on the authority of Willoughby Municipal Council v Local Government Appeals Tribunal and Manchil Pty Ltd [1974] 2 NSWLR 415 where Samuels J, in considering whether the Local Government Appeals Tribunal had power to approve amended development plans, said at p 420:- It can consider only the application which was before the council. But this does not mean that it is confined to precisely the same material as that which was before the council. There may…be occasions when an amendment to plans are so significant as to convert the original concept into something substantially different. But, having considered the alterations made I do not consider that this is such a case. 21 In Thomas v Pittwater Council [2003] NSWLEC 19 Lloyd J applied the 'substantially the same' test in the context of s 96 of the EPA Act when considering whether development involving demolition of a whole dwelling house apart from two sections of external walls was substantially the same development as that which consent had been granted, that is, alterations and additions to an existing dwelling house. Lloyd J applied Vacik Pty Ltd v Penrith City Council (NSWLEC, 24 February 1992, unreported) where Stein J said "in assessing whether the consent as modified…one needs to compare the before and after situation" and Moto Projects (No.2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298 where Bignold J said that the "comparison involves….the circumstances in which the development consent was granted." Lloyd J held that the development, as proposed, amounted to a new development that would incorporate token elements of the existing external walls.

22 In Waite v Blacktown City Council [2004] NSWLEC 157 Lloyd J considered whether amended plans were substantially different from the original plans. His Honour found at [21] that the changes were significant and applying Manchil said that:- 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. It is also follows that the comparison must be between the development application as originally made and the amendments that are now sought.

23 Ms Ranken relies on the decision of Waite to support the submission that, in determining whether the development is amended or varied, the comparison should be drawn between the original plans lodged in support of the Development Application and the further amended plans filed and served 19 August 2005 now sought to be relied upon by the applicant. She says that what is now proposed by the applicant does not form an amendment or variation to the Development Application because the plans present a new proposal.

24 Mr Tomasetti relies on the decision of Ervin Mahrer and Partners v Strathfield Municipal Council (No. 2) (2001) 115 LGERA 259 where Bignold J said that the reasoning of Manchil should not be applied to the plain meaning of the words attributable to the broad power created by Regulation 55. At [139] Bignold J held that "cl 55…permits a development application "to be changed or altered resulting in an alteration, variation or modification to the proposed development.""

25 In Elali v Campbelltown City Council (2004) 135 LGERA 85 Bignold J reiterated the findings made in Ervin Mahrer in respect of Regulation 55.

26 I was also referred to the Court of Appeal decision of North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468. In that decision Mason P (in the context of s 102, as it then was) said at p 474 that "the natural reading of the words "modify the consent" is modify the consent in its form current at the time of the modification application." Mason P rejected the appellant's argument that the finding would permit a number of consequential amendments that would alter the original application.

27 Mr Tomasetti argues that reasoning of the President of the Court of Appeal should be applied to Regulation 55 so that the consent authority, when determining whether the plans form an amendment or variation, will compare the plans in their form current at the time of application to rely on the amended plans.

28 If Mr Tomasetti is correct the exercise the Court must undertake is a comparison between the Issue C plans filed and served 19 August 2005 and the penultimate set of plans, namely Issue B filed and served 3 May 2005.

29 Ms Ranken on the other hand argues that Michael Standley can be distinguished on the basis that s 102 (now s 96) is textually different from Regulation 55.

30 Mr Hand, a town planner employed by the council has conveniently prepared a table of comparisons for the three plans filed in the proceedings. The plans lodged with the development application have not been included in this table below:- Original Design First Amendment Second Amendment Issue A Issue B Issue C (10 December 2003) (3 May 2005) (19 August 2005) RL 5.20 - 1 office Basement N/A RL 4.40 - 26 car spaces RL 5.80 - 2 shops 29 car spaces Lower Ground/ RL 7.40- supermarket RL 7.40 - supermarket RL 8.40 - supermarket and 1 shop Ground RL 7.97 - 1 existing shop RL 7.62 - 1 shop RL 8.04 - 1 shop Floor RL 7.44 - 12 car spaces RL 7.19 - 10 car spaces RL 8.21 - 1 office RL 11.14 - 2 units RL 10.84 - 2 units RL 10.19 - 1 office RL 10.19 - 1 office Ground/ RL 8.69 - 1 existing shop RL 7.90 - 1 shop RL 11.25 - 3 units First Floor RL 9.31 - 1 existing shop RL 8.23 - 1 shop 12 car spaces RL 10.06 - 1 existing shop RL 9.75 - 1 shop RL 10.75 - I existing shop RL 10.44 - 1 shop RL 10.16 - 5 car spaces RL 9.99 - 5 car spaces RL 13.16 - 1 office RL 12.79 - 2 units First Floor RL 13.04 - 1 unit RL 12.61 - 1 unit RL 13.50 - 3 units RL 13.16 - 1 unit RL 12.74 - 1 unit RL 13.84 - 3 units RL 13.54 - 2 units Second/ RL 16.16 - 2 units RL 15.79 - 2 units RL 16.10 - 1 unit Third Floor 1 supermarket 1 supermarket 1 supermarket 2 offices 2 offices 1 office TOTALS 5 existing shops 5 shops 4 shops 17 car spaces 41 car spaces 41 car spaces 9 units 8 units 7 units

31 From this table it is clear that the mix of shops, units and car spaces has changed on each occasion. The Issue C plans indicate that the existing building is to be removed. In comparison the Issue B plans appear to retain the existing shop area with some new walls. Overall the concept remains the same. However the placement and configuration of shops, offices and units has been altered.

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.

(2) Whether there are essential elements that are so altered in the context of a consideration under the EPA Act that they place the development in a different category for the purpose of assessment.

36 Mr Tomasetti argues that a restricted view of Regulation 55 would lead the Court to be ensnared in the details of the amendments. I agree, but that is not a reason to avoid the proper application of Regulation 55, even though it has practical appeal. 37 Applying the reasoning of Bignold J in Ervin Mahrer and Elali, qualified by what I said in Urbis and stated above, it is open for the Court to look at the proposal before and after the proposed amendments to ascertain in a broad sense whether in truth they are properly to be regarded as changes or alterations to the development regarded as an overall concept, rather than taking an approach that involves a quantitative assessment of the variations to determine whether they are substantial by using some empirical formula to ascertain the degree of change. In the present case a perusal of the plans show that at each stage the result achieved by the carrying out of the proposal will be a complex comprising some residential units, a supermarket, a small number of other shops and offices with ancillary car parking

38 The council's argument primarily relies upon acceptance that the change from the original concept of alterations and extensions to an existing building, to the erection of an entirely new building amounts to a new development proposal. It is not clear from the council's point of view whether this perceived change took place when the Issue B plans were produced or after Issue C was produced in August 2005. In the case of Issue B the reliance upon any part of an existing building was minimal. By the time the Issue C plans were presented any reference to reliance upon existing structures had been omitted. Given the limited reliance upon existing structures in the first place, in my opinion that factor does not give rise to a different overall concept or place the development in a different category for the purpose of assessment.

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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