Flower and Samios Pty Ltd v Shoalhaven City Council

Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204; Ebsworth v Sutherland Shire Council [2005] NSWLEC 603; Elali v Campbelltown City Council (2004) LGERA 85 ; CASES CITED: Ervin Mahrer and Partners v Strathfield Municipal Council (No.2) (2001) 115 LGERA 259 ; Rose Bay Afloat v Woollahra Municipal Council (2002) 126 LGERA 36; Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 149

APPLICANT Mr N J Williams SC with Miss J M Jagot (Barrister) SOLICITORS Mark McDonald & Associates LEGAL REPRESENTATIVES:

RESPONDENT Mr P R Clay (Barrister) SOLICITORS Morton & Harris

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10587 of 2005 Flower and Samios Pty Ltd v Shoalhaven City Council

JUDGMENT Introduction 1 Talbot ACJ: This is another argument relating to an application for the Court to agree to the amendment or variation of a development application pursuant to section 39(2) of the Land and Environment Court Act 1979 ("the Court Act") by exercising the power of the Council, as consent authority, under cl 55 of the Environmental Planning and Assessment Regulation 2000 ("the EPA Regulation"). 2 I recently undertook a comprehensive review of the authorities in relation to the issues that arise when an application is made under cl 55 in Ebsworth v Sutherland Shire Council [2005] NSWLEC 603. After yet again accepting the broad general principle expressed by Bignold J in Ervin Mahrer and Partners v Strathfield Municipal Council (No.2) (2001) 115 LGERA 259 I nonetheless suggested some criteria that might be useful as a guide to the determination of the boundary or outer limit to the exercise of power under cl 55 before considering discretionary issues of merit. The suggested criteria stated in Ebsworth at [35] are as follows:-

(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. 3 Clause 55 provides the procedure for "amending a development application." By contrast Part 13 Rule 16 (b1) of the Land and Environment Court Rules 1996 ("the Court Rules") (which applies where proceedings have been fixed for hearing) relates only to the consent of the respondent, or the leave of the Court for the applicant at the hearing to rely upon "amended plans." These proceedings have not been fixed for hearing and accordingly cl 55 of the Regulation is the applicable provision. Clause 55 states:-

(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. 4 It is common ground that s 39(2) of the Court Act vests the Court with all the functions and discretions that the council has in respect of the development application the subject of the appeal, including the functions and discretions under cl 55. The application

5 Flower and Samios Pty Ltd ("the applicant") has filed a Notice of Motion dated 9 September 2005 seeking the leave of the Court to rely upon amended plans in substitution for the plans lodged with the development application. The hearing has proceeded on the understanding that the Court is being asked to provide the agreement of the consent authority referred to in cl 55(1) of the Regulation under s 39(2) of the Court Act. The applicant seeks to amend or vary the development application by substituting the amended plans.

6 The development application was lodged with Shoalhaven City Council ("the council") by the applicant on 28 July 2003. It was refused by council on 27 July 2004. The Notice of Determination describes the development as relating to 14 Reservoir Lane Cambewarra Lot 203 DP 883494 being:- Retirement Village under SEPP 5 - Housing for Older People or People with a Disability comprising 227 Self-Care Dwellings, Community Centre, Landscaping, Water Features and Internal Loop Road with access to Main Road, Cambewarra. 7 The Statement of Environmental Effects ("SEE") that accompanied the development application refers to:- a retirement housing development under State Environmental Planning Policy No 5 on the southern part of Lot 203, DP 883494 at Main and Tannery Roads, Cambewarra. 8 The site details are described in the SEE in the following terms:- The subject site comprises that Part of Lot 203 in DP 883494 between Main Road and an unnamed road which severs the property (the balance fronting Tannery Road). The site is situated on the western side of Cambewarra Village. The site is irregular in shape and has an area of approximately 26.17 hectares and a frontage of approximately 56m to Main Road, and 270m to the unnamed road at the rear. 9 Notwithstanding that the development application form refers to an area of 216,700m2 the site plan accompanying the development application is consistent with the area of 26.17 ha described in the SEE. The site is zoned Rural 1(a) (Rural 'A' Agricultural Production Zone) under Shoalhaven Local Environmental Plan 1985 ("LEP 1985"). The proposed development is not permissible within that zone but the applicant claims it is nevertheless capable of being approved under State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability ("SEPP 5"). The proposed amendments

10 The site the subject of the amended proposal covers two distinct parts of Lot 203 DP 883494 comprising together a total area of 44.17ha. The retirement village site occupies the original area of 26.17ha. The additional area of approximately 18ha is to be used to house sewage treatment facilities and spray irrigation of treated effluent over 5.7ha. 11 The additional area is situated within zone Rural 1 (a). 12 In summary, the amended plans show the following changes:- (a) The total number of dwellings has been reduced by one, in a marginally changed configuration. (b) Minor changes have been made to footpaths, visitor parking spaces and roads. (c) A bus turning circle has been introduced. (d) The community building has been increased in size from 308m2 to 445m2. (e) All (56) four bedroom dwellings have been reduced to three bedroom dwellings with a study. (f) On site sewage treatment and disposal in lieu of connection to the existing reticulated sewage system.

(g) Connection of water to the site by way of a dedicated water pipeline from Cambewarra reservoir in lieu of connection to existing water services. (h) One tennis court is added to the originally proposed future tennis court. (i) The provision of 10KL rainwater tanks buried below ground attached to each proposed dwelling. (j) A future residential aged care facility has been deleted. 13 The council agrees that the proposed changes to the development application in respect of the retirement village itself are capable of being regarded as an amendment or variation to the proposed development. It is the changed arrangements for the provision of water supply including the underground rainwater tanks and the proposal for sewage treatment and disposal on the extended site that the council says brings about such a change that the proposed development is not the same as the original concept. 14 The council's consultant environmental engineer Dr Steve Perrens considers that the proposed rainwater tanks represent a significant change that could be justified only on the grounds of meeting BASIX requirements. He expects further geotechnical assessments would need to be undertaken to determine the adequacy of the foundation conditions for the rainwater tanks. He also identifies a number of issues that will need to be addressed in respect of the proposals for sewerage services. Submissions by the applicant 15 Mr Williams SC makes the following points in support of the applicant's case: -

(1) The power under cl 55(1) is to be construed broadly (Ervin Mahrer).

(2) The determination of whether the development is amended or varied is not constrained by concepts of substantiality (Ervin Mahrer) (Elali v Campbelltown City Council (2004) LGERA 85 distinguishing Dyldam Developments Pty Ltd v Holroyd City Council [2001] NSWLEC 204) either by the objectives of cl 55 or the consequences of agreeing to the amendment.

(3) There is no reason in principle why more land cannot be added (Rose Bay Afloat v Woollahra Municipal Council (2002) 126 LGERA 36). (4) The additional components of the proposed development are minor both in relative terms when compared to the scale of the whole development as amended and in absolute terms. (5) The development of the sewage pumping station, the sewage treatment plant, the effluent storage dams and the effluent disposal area is wholly subservient to the SEPP 5 development. (6) The alternative provision of water and sewerage services is responsive to an issue raised by council. The council's submissions 16 Mr Clay makes the following points on behalf of the council:- (1) There is a distinction between the development application and the land to which it relates so that cl 55 of the Regulation can only apply to the development application and not to the land.

(2) An amendment cannot be so substantially different to result in a new application. (3) It is appropriate to have regard to the overall concept of the development as originally proposed compared to the amended scheme of development to determine whether the underlying and essential characteristics of the proposals are the same. (4) In determining questions of fact and degree the use of adjectival epithets is a means of identifying the extent of change (Urbis Pty Ltd v Sutherland Shire Council [2001] NSWLEC 149 at [18], [21], [24] and [25], Elali at [17]). (5) There is a substantial change in the quantity of development by the use of additional land for a distinct purpose. (6) There is a significant variation to the quality of the development by introducing the new elements of alternative water supply, sewage treatment and effluent disposal. (7) The ancillary nature of the additional components does not mean that they are not to be regarded as new elements requiring separate and additional investigation and consideration. Consideration 17 Although the power under cl 55 of the Regulation is broad and general, it nevertheless remains a question of fact and degree in every case to determine whether proposed variation can be regarded as changing the underlying characteristics of the development to the extent that it should be regarded as a new proposal, including by changing the nature and extent of the consideration required. 18 The applicant relies upon the decision of Bignold J in Rose Bay Afloat. Whereas His Honour found on the facts otherwise, he did not have to finally determine whether the power conferred by cl 55 is available in a case where the land to which the amended development application relates is different from the land to which the original development application relates. Nonetheless he made the following obiter remarks at [66] and [67]:- [66] There are two fundamental integers in a development application - (i) the proposed development; and (ii) the development site. The statutory power of amendment clearly is capable of applying to both integers. [67] As a general proposition, the relocation of a proposed development elsewhere within a given development site would clearly be a change to a proposed development ostensibly within the power of amendment or variation conferred by cl 55 of the Regulation. Again, as a general proposition, the fact that a relocation may involve a part of a development proposed for land, extending upon adjoining land, would not, per se, disqualify such a change to the proposed development from being within the ambit of an amendment or variation of the development application pursuant to cl 55 of the Regulation. 19 Firstly, I am not bound to follow Bignold J in circumstances where his opinion is obiter dicta and secondly his observations are not apposite to the same factual circumstance of the present case. 20 During argument Mr Clay referred to those provisions of the EPA Act that, he says, make a clear distinction between the development application and the land to which it relates. A development application as defined in section 4 of the Environmental Planning and Assessment Act 1979 ("the EPA Act") is required before consent can be granted under Part 4 of the Act. The council's argument is based upon the separate references to "development " and "land" in the provisions of ss 76 and 76A which deal with the particular forms of development according to whether consent is required. 21 Clause 49 of the Regulation replaces the former s 77 of the Act and allows a development application to be made either by "the owner of the land to which the development application relates" or by "any other person, with the consent in writing of the owner of that land." Therefore, so the argument goes, the legislative scheme contemplates that the development application is one aspect whereas the land is a different aspect or element in the process of obtaining development consent. As cl 55 of the Regulation is in terms only dealing with one of those aspects or elements, namely the development application, it follows that cl 55 does not permit an amendment to the land to which the development application relates.

22 However the council's argument, if I understand it correctly, appears to ignore cl 50(1)(a) of the Regulation that specifies that a development application must contain the information and be accompanied by the documents specified in Part 1 of Schedule 1. Part 1, cl 1(c) refers to the address and formal particulars of title of the land on which the development is to be carried out as part of the information to be included in the development application. Clause 2(1)(a) requires that a site plan of the land accompany the development application. In my opinion cl 50 of the Regulation and Schedule 1 make it quite clear that the description and identity of the land form part of the development application. It is common practice for a development application form to contain a specific section dealing with the description of the property where the development is proposed.

23 There is no reason that I can fathom that would prevent an applicant for development consent from seeking to amend a development application relying upon cl 55 of the Regulation where the amendment changes the information relating to the particulars of title or other means of identification of the land contained within the development application already made. That information and detail in my opinion forms an integral part of the application itself.

24 I find that an applicant for development consent can seek to amend a development application by changing the description or identity of the land to which the proposed development relates. That finding does not resolve the remaining issues in the present case. The questions of fact and degree remain to be determined.

25 If the effect of a proposed amendment is to convert the application into an application for a different development either in fact or by degree of change then the court cannot entertain it as it has no power to accept and consider a new development application. Even where the variations proposed can be technically regarded as appropriate for consideration as amendments, nevertheless a discretion remains whether to grant consent. The exercise of the latter discretion is not raised here as part of the council's argument if the Court decides that the changes can be rightly regarded as amendments. Nevertheless, as I have already stated, where essential elements are to be altered in a way that calls for a consideration of a whole set of novel criteria not previously addressed then it can be appropriate to regard the proposed changes as something more than amendments that fall for consideration within the ambit of cl 55. 26 It is, in my opinion, simply too glib to accept that the proposal before and after the changes are made is a retirement village. The original application was for retirement housing and ancillary facilities confined to an area of 26.17 hectares. That concept is maintained in so far as the land to be utilised for the construction of housing is concerned. 27 Water and sewerage services were to be facilitated by connection to an existing system outside of the development. The additional works now foreshadowed lead to a major conceptual change in respect of water reticulation, supply and storage, which arguably may not itself lead to a reassessment of essential elements of the application. 28 However the collection, treatment and disposal of sewage and effluent involve a totally new and additional category of works that demand separate assessment and consideration independently of the retirement village itself. Wider issues than the impact and consequences of the provision of housing for older people and people with a disability arise to an extent that dramatically changes the context of the consideration required under the EPA Act. 29 The argument that the treatment works might be technically subsumed in the SEPP 5 development for the purpose of determining whether the application must be assessed as designated development does not change or confine the nature and extent of the assessment that will arise if the proposal for on site treatment and disposal proceeds. In that context I regard the changed proposal as being, in effect, a new development and not capable of being dealt with as an amendment or variation contemplated by cl 55 of the Regulation. 30 I therefore refuse to agree to the amendments as proposed and dismiss the application to substitute the so-called amended plans for the original plans. The exhibits may be returned.

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