Total provided 138 spaces
10 These verbal particulars of the proposed amendments and the nature of the changed development are confirmed by a comparison of the original and amended development application plans which depict in precise detail the original development proposal and the amended development proposal. The visual comparison of the two sets of plans enables a full appreciation to be gained of the differences between the original and the amended development proposals. As earlier noted, the essential differences reflect a substantial reduction in the scale of the proposed development without otherwise affecting its essential characteristics as a convention centre and serviced apartments complex with basement carparking accessed via Airds Road.
11 The competing submissions, as I have noted, rely upon different authorities in this Court where it is inescapable that the two relevant decisions are inconsistent with each other. No serious attempt was made in the course of an abbreviated hearing to resolve the obvious inconsistency between the decisions in Ervin Mahrer and Dyldam Developments, the competing submissions simply relying upon the competing decisions.
12 In Ervin Mahrer I held at 277 that the fundamental task required in that case was for the Court to determine the proper construction of the EP&A Regulation, cl 55, having noted at 270 that that task had not been previously undertaken in any known decided case in relation to cl 55 or any of its legislative predecessors dating back to the commencement in 1980 of the original EP&A Regulation (which for the first time in town planning legislation had conferred an express power to amend or vary a development application prior to its determination).
13 It was in these circumstances that I approached the task (commencing at 278) by first construing cl 55 then revisiting the question whether the considerable course of authority in the decided cases should carry any influence or impact upon the proper construction of the clause, before concluding its proper meaning.
14 At 279 I reached the following prima facie construction:
Putting together these words, as expounded, results in the following obvious interpretation of the amendment power created by cl 55.
A development application may be changed or altered resulting in an alteration, variation (or) modification to the proposed development.
15 Having so concluded, I immediately said:
Is there anything in the context or the apparent legislative purpose of the EP&A Act or Regulation which would suggest a displacement or modification of the plain meaning thus far given to the language of cl 55? In my judgment, the answer to this question is no.
16 After considering at 279/280 a number of relevant provisions of the EP&A Act, and the EP&A Regulation, I returned to the question that I had earlier posed concerning the potential impact upon the proper construction of cl 55 of the earlier cases when I said at 280/283:
[121] Is there anything in the course of authority in the decided cases that would suggest the displacement or modification of the plain meaning of cl 55? Here I must encounter two separate features of the decided cases. First, there are the cases which assumed an implied, but undefined, power of amendment of a development application, the most notable of which are Manchil (most particularly because of its frequent citation in decisions of this Court) and Shanahan. Secondly, there are the numerous decisions of this Court (eg Toadolla; Westport Marina Developments; Songkal v Warringah Council (2000) 111 LGERA 71; York Developments Pty Ltd v Liverpool City Council (2000) 109 LGERA 305; Khouri v Burwood Council (2001) 115 LGERA 1) which have adopted and applied Manchil without any express assimilation of (i) the assumed implied, but undefined, power of amendment; with (ii) the statutory power of amendment created by cl 55 of the Regulation (and its predecessor counterparts tracing back to the commencement in 1980 of the EP&A Act) and without expressly adverting to any need to properly construe the statutory power created by cl 55 (and its legislative predecessors).
[122] In Manchil, Samuels J acknowledged the possibility of an amendment to plans (being) so significant as to convert the original concept into something substantially different (at 420; 308) and in Shanahan Nader J regarded Manchil as providing significant guidance before concluding (at 55; 263) that despite the wide powers conferred upon the Planning Act 1979 (NT)), the content of an application may be so changed on appeal as to deprive it of its character as the subject of appeal and render any hearing or determination upon it as ultra vires the committee.
[123] Later (at 57; 265), Nader J restated his earlier conclusion, but in the following different terms:
Having decided that, if the changes to the original plans impliedly effected were such that the original application lost its identity and became in reality another application, it was not open to the committee to continue to hear or to determine the appeal on the basis of the new plans, it is now necessary to decide whether the new plans did effect such a radical change.
[124] However, both formulations of Nader J's conclusions need to be understood in the light of the following passage (at 59; 267) appearing at the end of his judgment where his Honour draws a number of legal inferences or implications
from the existence in the Planning Act of special provisions concerning prescribed development applications :
I regard this last-mentioned provision as indicating, by inference, that, where a development application was not a prescribed development application, the consent authority had power, not merely to allow amendment, but to allow extensive amendment. By further inference it can be seen that the parliament did not consider extensive amendment alone as depriving an application of its identity. Remembering that by s 134 of the Planning Act, the committee was vested with all the powers, authorities, duties, functions and discretions of the consent authority, I see no reason why the fact of extensive amendment alone should deprive the subject of an appeal of its identity.
[125] When his Honour's earlier conclusions are read in the light of this ultimate passage in his judgment, I think it is legitimate to deduce the following proposition -- a planning appeals body in allowing amendments, may not allow radical changes (exceeding extensive amendment ) to be made to development application causing it to lose its original identity and thereby become another application which is not the subject of the planning appeal.
[126] In my respectful opinion, there is nothing in the judgments in Manchil or Shanahan which would necessitate or justify a displacement or modification of the plain meaning of the power created by cl 55 of the Regulation. In truth, neither case purports to identify the precise terms of any relevant implied amendment power that was assumed to exist or to construe the scope and ambit of any such amendment power. Rather, both decisions in recognising the possibility that some amendments to development applications will be of such a nature as to involve not an amended, but a fresh development application do so entirely from the perspective of recognising the limitations on the statutory function of an appellate planning body to hear and dispose of an appeal brought against the determination of a consent authority.
[127] This of course is a very relevant, if not crucial, perspective for the legitimate application of the LEC Act, s 39(2) which I have already considered in answering the first question posed, but it is not relevant to the present question involving the proper construction of cl 55 of the Regulation.
[128] Accordingly, I 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 (Shanahan at 58; 266) or to superimpose upon the adopted meaning of the word change, namely to make different the qualification of not being substantially different (Manchil at 420; 308).
[129] In the light of my conclusions that the decisions in Manchil and Shanahan do not require or justify any modification of the plain meaning that I have attributed, by process of construction, to the scope and extent of the power created by cl 55, it remains for me to consider whether that tentative construction is impacted by the decisions of this Court which have applied Manchil and or Shanahan. As I have already noted, Manchil has been frequently cited and applied in judgments of this Court which were concerned with the power of this Court in hearing and disposing of a development appeal to allow an applicant to amend the proposed development or to rely on amended plans. In applying Manchil, the cases frequently deduce the principle that the limits of the power of amendment will be exceeded if the changes to the proposed development are so significant as to convert the original development concept into something substantially different.
[130] However, as I have attempted to show, this deduced or derived principle, is in truth, an emanation from, or a consequence of, the nature of the Court's jurisdiction to hear and determine a development appeal, rather than representing an interpretation of the power of amendment created by cl 55 of the Regulation.
[131] For those reasons, I do not think, with respect, that the decisions of this Court that have applied Manchil provide any assistance to the task of properly construing the statutory power of amendment created by cl 55 of the Regulation.
[132] I should, however, note that in Songkal, Sheahan J (at 81) appears to have been prepared to extend the test laid down in Manchil and the cases that have followed it to the council's opinion in that case that amended plans lodged with it were so substantially different from the original development proposal as to amount to a fresh application. However, in so concluding, his Honour did not purport to consider the statutory power of amendment or to construe that statutory power. For the reasons I have previously given, I would respectfully not see the decision in Manchil as assisting in the task of the statutory construction of cl 55 of the Regulation.
[133] Another case which gave consideration to the scope and extent of the power to amend a development application in a context not involving the functions of an appellate planning body was Independent Holdings. As I have earlier noted, in that case King CJ of the Supreme Court of South Australia implied the power to amend or permit amendment of a development application for the following reasons stated (at 326; 346):
In the absence of an express provision authorising amendment, it is necessary to consider whether there is any implied authority to amend or permit amendment. There does not appear to be any reason why the primary planning authority, be it Council or Commission in the particular case, should not have the power to permit amendment of the plans which form the basis of the application, before it makes its final decision. There is no provision in the City of Adelaide Development Control Act 1976 (SA) which forbids such a course. There are no third party rights under the City of Adelaide Development Control Act which could be adversely affected. It is manifestly convenient that such a power should exist. It is almost inevitable that when proposals for complex developments are examined by the planning authority's experts, some need for modification of plans will arise. It would be absurd to require a developer to lodge a new application notwithstanding that the desired modification might be of minor significance. I see no reason to interpret the City of Adelaide Development Control Act in so rigid a manner.
[134] However, because of the existence of a provision of the City of Adelaide Development Control Act which determined that the applicable law was that in force upon the date of the application for approval , King CJ considered that some limitation on the scope of permissible amendments was required so that amendment cannot be made the means of substituting for the original application what is in substance a new application (at 326; 346).
[135] The Chief Justice expounded the necessary limitations by holding that earlier Full Court decisions in City of Marion v Becker and Hancock Development Corporation Pty Ltd v City of Tea Tree Gully, (albeit dealing with the nature of the planning appeal process and not the power of the primary planning authority to permit amendment) had made a valid distinction between permissible and impermissible amendments which the Chief Justice (at 326-327; 347) formulated as follows:
Amendments are permissible unless the amendments are so extensive as to change the character of the development so that it is not, in essence, the same development as that for which approval was originally sought.
[136] In the result, the Chief Justice found (at 327; 347) that the amendments submitted in the applicant's amended plans were extensive but he continued:
They did not however in my opinion, alter the essential character of the proposed development.
[137] I would respectfully distinguish Independent Holdings from the present case for the following reasons:
(i) It involved an assumption of an implied power to amend or to permit amendment, albeit otherwise undefined, whereas the present case involves an express statutory amendment power;
(ii) It did not involve the construction of any statutory or otherwise defined amendment power whereas the present case requires such a construction of a statutory power;
(iii) It involved an implied limitation on the assumed implied power to amend, to ensure that another important provision of the legislation (defining the applicable law) was not ignored or defeated by the exercise of the amendment power, whereas the present case does not involve any features that would support the implication of any such limitation. On the contrary, the statutory power of amendment has always been part of the detailed provisions of the EP&A Act. Its function in that complex is clearly facultative which justifies a liberal interpretation of the power. The fact that the power is conditional in that the agreement of the consent authority is required to any amendment means that there is no risk of abuse of power.
[138] For all these reasons, I do not think that the decision in Independent Holdings requires or justifies any departure from or modification to, the construction of cl 55 of the Regulation that I have adopted.
[139] For all the foregoing reasons, I would now formally adopt my earlier stated construction of cl 55 and hold 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 to the proposed development.
17 If the construction of cl 55 that I adopted in Ervin Mahrer were applied to the undisputed facts in the present case concerning the nature of the proposed development as originally proposed and the nature of the proposed changed development with the differences between the two revealed by the process of simple comparison of the two sets of plans leading to the conclusion I have earlier stated (a development substantially reduced in scale but otherwise having essentially the same development characteristics), there could only be one answer to the question of the application of cl 55, namely that the proposed amendments fall within the ambit of the power of amendment or variation conferred by cl 55. If such ultimate conclusion were to be reached, there would be no need either to invoke or to negate adjectival epithets to describe the comparison between the original and the amended development proposal (such as for example "substantially or radically different" or "essentially the same character").
18 However, the Council's submission, which does invoke the adjectival epithet, is founded upon the decision in Dyldam Development where Pealman CJ in refusing leave for the applicant to rely upon amended plans reasoned to that conclusion in the following passages at pars 5 to 9 inclusive:
5. I am sympathetic with those concerns but they do not override the question of whether the Court should in its discretion permit the matter to proceed on the amended plans. Part 13 r 16(b1) of the Land and Environment Court Rules 1996 provides that the applicant cannot proceed on amended plans without the council's consent or with the leave of the Court. In this case, I think more fundamental is the nature of the change.