(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.