Futurespace Pty Ltd v Ku-ring-gai Council

Cachia v Manly Council (No 2) [2009] NSWLEC 1107 CASES CITED: Coshott v Woollahra Council [1996] NSWLEC 256 Groeneveld v Wollongong City Council [2009] NSWLEC 149 Groeneveld v Wollongong City Council [2009] NSWLEC 1226

J Hones (Applicant) Hones La Hood Lawyers (Applicant) LEGAL REPRESENTATIVES: J Robson SC (Respondent) Deacons Lawyers (Respondent)

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EX TEMPORE JUDGMENT Introduction 1 HER HONOUR: This is a notice of motion seeking leave by the applicant to reply upon the amended plans by Futurespace Pty Ltd, being drawings A000-B; A001-B; A002-B; A100-B; A101-B; A102-B; A103-B; A104-B; A105-B; A200-B; A201-B; A301-B; A400-B; A401-B and the landscape plan prepared by iSpace Landscape Architecture being drawing number 38.09/064 "A" (together, "the amended plans"). 2 The motion is moved upon in the context of a class 1 appeal filed 30 July 2009, against the deemed refusal to grant development consent to an application for the demolition of three existing structures and the construction of a residential flat building with 27 units, basement parking and associated works ("the proposed development") at Lots 4, 5 and 6 in DP 6353, otherwise known as 7-11 Turramurra Avenue, Turramurra ("the site"). 3 The respondent, Ku-ring-gai Council ("the council"), does not oppose the granting of leave and submits that the amendments are appropriate. 4 The Court agrees, and accordingly, leave is granted to rely upon the amended plans. 5 The issue in this motion is whether the proposed amendments as contained in the amended plans are "minor" for the purpose of s 97B of the Environment and Planning Assessment Act 1979 ("the EPAA"). If they are not, then that provision states that irrespective of the utility and appropriateness of the amendments, the applicant must in effect pay the council's costs incurred in respect of the assessment of the original development application. Somewhat unusually in respect of an awards of costs the Court has no discretion but to award costs against the applicant if the Court forms the view that the amendments are other than "minor". 6 It therefore comes as no surprise that the applicant submits that the amendments are minor, whereas the council submits that they are not. Legislative Background 7 Section 97B of the EPAA states as follows (emphasis added): 97B Costs payable if amended development application filed (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application ( other than to make a minor amendment ).

(2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal.

(3) The regulations may provide for circumstances in which subsection (2) does not apply.

(4) This section has effect despite the provisions of any other Act or law. 8 Unhelpfully there is no definition of the word "minor" in the Act, or any other guidance provided by the legislature as to what this term means for the purpose of the provision. Factual Background 9 The development application the subject of the appeal was submitted on 21 May 2009 ("the DA"). The DA was notified to owners of surrounding properties and the council received nine submissions.

10 The development proposal involves the amalgamation of three lots, the demolition of existing structures and the construction of a residential flat building containing 27 units, 59 parking spaces on three basement levels and landscaping. There is one lift to provide access to all levels.

11 The site is located on the south-eastern intersection of Nulla Nulla Street and Turramurra Avenue and has a frontage of 54.02m to Turramurra Avenue and 51m to Nulla Nulla Street.

12 The site is zoned 2(D3) which allows for residential flat buildings of up to five storeys. The total area of the subject site is approximately 2734m2.

13 There are a number of large street trees on the Nulla Nulla Street and Turramurra Avenue frontages, including a Pin Oak, Claret Ash, Mugga ironbark and Himalayan Cedar at the north-western corner of the site.

14 A heritage item (2 Nulla Nulla Street) is located directly opposite the development site at the north-eastern corner of Turramurra Avenue and Nulla Nulla Street. To the south, east and west of the subject site are other single dwellings. The land to the east of the subject site is zoned 2(C2). The land to the south is zoned 2(D3). Council has approved DA No.68/06 for 49 units at 15-19 Turramurra Avenue and 1 Wonga Wonga Street and DA No.402/06 for 36 units at 20-28 Turramurra Avenue.

15 The Uniting Church, a draft heritage item, is situated to the south-west of the site (10 Turramurra Avenue). The Turramurra Town Centre and Turramurra Railway Station are also located in close proximity to the subject site.

16 In the council's statement of facts and contentions it listed approximately 33 contentions as to why the application must be refused. They are grouped under the following seven categories: (a) the proposal would have an adverse impact on the streetscape;

(c) the proposal fails to promote the orderly development of the land;

(f) the proposal is not considered to be in the public interest due to the likely impacts upon the streetscape, the loss of amenity for adjoining properties and future residents and impacts to the draft and existing heritage item as a result of unsympathetic materials; and

(g) insufficient, inadequate information and/or plans. Evidence and Submissions Applicant's evidence

17 In addition to the amended plans, the applicant read an affidavit of Mr Gregor Zylber, a town planner, sworn 31 August 2009, who stated that: (a) some of the contentions have been identified by the council as capable of being addressed by conditions;

(b) most of the remaining contentions are not the important contentions in the appeal and could be dealt with by way of conditions; and

(c) the amended plans are responsive to the issues raised by the council and address them by: (i) reducing the alleged impacts of the proposal in terms of "bulk, scale, residential amenity, landscaping and streetscape"; and

(ii) they "clarify details matters that could have been dealt with by condition". 18 During the hearing of the motion I provisionally admitted paragraph 9 of Mr Zylber's affidavit subject to relevance. In this paragraph Mr Zylber gave an opinion that the contentions in relation to the southern façade and setback were not maintainable because these elements had already been satisfied. After reviewing the evidence and hearing the submissions of the parties, I reject this paragraph. With respect to Mr Zylber, his opinion on this issue is not relevant to my determination of whether the amended plans constitute "minor" amendments to the proposed development. Submissions of applicant

19 The applicant took the Court through the amended plans to highlight, in its view, the minor nature of each of the amendments.

20 The applicant stated that only contentions 1(b) (relating to a 60% ratio of the floor space of the top storey to the floor space of the level below) and 3 (relating to the promotion of the orderly development of the land) were not affected by the amended plans and could seriously be said to be contentious, and therefore, at the heart of the appeal. The rest of the contentions were, it submitted, of an insubstantial nature and could be dealt with by conditions attached to the consent. 21 The applicant submitted that in the absence of any statutory definition of the term "minor", its ordinary everyday meaning should be given to it for the purpose of the provision. In this regard the applicant relied upon the definition of the word "minor" in the Concise Oxford Dictionary as something "having little importance, seriousness or significance". 22 The applicant took the Court to the few authorities on point, namely, Cachia v Manly Council (No 2) [2009] NSWLEC 1107 (referring to Coshott v Woollahra Council [1996] NSW LEC 256) and Groeneveld v Wollongong City Council [2009] NSWLEC 1226 ("the first Groeneveld"), affirmed in [2009] NSWLEC 149 per Preston CJ ("the second Groeneveld"), and submitted that the test set down in Cachia, viz, that "consistent with the legislative intention, to have regard not to the number of amendments but, whether in the context of the issues that are pressed by the council, the total effect of the changes are minor or not" was incorrect. 23 Rather, the applicant urged upon the Court an examination of the amendments to determine if each amendment was of itself minor or not. The applicant submitted that if the Court did not consider and assess the amendments on this basis an injustice would result in circumstances where the applicant had amended the plans in order to refine the issues on appeal and facilitate the overriding purpose of litigation pursuant to s 56 of the Civil Procedure Act 2005 (see also Practice Note for Class 1 appeals, paragraph 29(d) and (e)). 24 The applicant also relied on obiter dicta remarks made by Acting Registrar Gray in the first Goeneveld (at [19]) where she said (emphasis added): 19 I accept the submission of the Council that circumstances where amendments can be considered minor are those where the amendments do not require any significant re-assessment of the development application by the experts engaged by the parties. Other circumstances might include where the amendments could have otherwise been dealt with by way of conditions of consent , or where the amendments relate to issues that are not the threshold issues in contention in the proceedings. 25 Accordingly, because the amendments proposed were all, the applicant submitted, capable of being addressed by a condition and were, in the main, "matters of detail" when considered both individually and in the context of the site as a whole, they were minor for the purpose of s 97B of the EPAA. Council's Evidence

26 In addition to its statement of facts and contentions, the respondent relied upon an affidavit of Mr Selwyn Segall, town planner employed by the council, sworn 7 September 2009. 27 Mr Segall briefly commented on the planning impacts of the changes. While most of the amendments, he conceded, were not necessarily by themselves "substantial", he did express the opinion that some were. For example, in relation to the creation of a new balcony to the bedroom of unit 4 he opined that: This new balcony may have impacts on the privacy amenity of 5 Turramurra Avenue, and needs to be properly assessed as it now introduces a balcony to a façade where there was not one before. 28 Mr Segall's unchallenged evidence may be summarised by quoting from his affidavit at paragraphs 3 and 8:

3 From a planning perspective, I am of the opinion that there are a significant number of small changes proposed by the amended plans which would require a full assessment of two key development standards contained within Ku-ring-gai Local Environmental Plan 194 ( LEP 194 ), namely the deep soil component being more than 50% and the top storey being 60% or less than the floor below.

8 In my opinion, each amendment per se is not substantial, however the accumulation or sum of all the changes has a large impact, particularly as regards the deep soil and top storey compliance with LEP 194. The substantial increase to the top floor level terrace around the south of the building and the introduction of an additional three balconies to this façade may have an impact on the privacy to the southern neighbour (5 Turramurra Avenue). I believe both neighbours (3 Nulla Nulla Avenue and 5 Turramurra Ave) should at least be notified of the changes in terms of Council's notification policy. Council's landscape officer should have the opportunity to assess the changes to the deep soil and Council's planning officer should assess the changes to the top floor. This requires a reasonable time period, say 2 weeks compared, to the very short period granted by the Court. 29 The council also tendered a letter dated 2 July 2009 from it to the applicant wherein the council stated that they had undertaken a preliminary assessment of the application and advised the applicant that it was unsatisfactory in a number of respects. It invited the applicant to address the matters contained in the letter in the form of amended plans or additional information. 30 The letter was also admitted on a provisional basis subject to relevance. The council argued that it was relevant because it demonstrated that the applicant had prior knowledge of most of the matters currently the subject of the statement of facts and contentions and the consequential amendments, but the applicant had chosen instead to, first, proceed with the appeal and, second, amend its application. 31 While the letter went some way to mitigating the asserted unfairness inherent in s 97B in its application to the applicant, I do not consider that the letter is relevant to the question that I must determine, namely, whether the amendments are minor or not. I therefore reject the tender of this letter. Council's submissions

32 The council relied on the unchallenged evidence of Mr Segall to submit that, viewed as a whole, the amendments were anything but minor. The council asserted that its submission was reinforced by the evidence of Mr Zylber who stated that, in his opinion, the amended plans reduced the alleged impacts of the proposal in terms of "bulk, scale, residential amenity, landscaping and streetscape". This statement alone, the council submitted, spoke with considerable volume of the 'major' effect of the amendments.

33 The council cautioned the Court against departing from the clear and unambiguous language of s 97B of the EPAA simply because to apply it would produce an inconvenient, capricious or unreasonable result.

34 In this regard, the council submitted that in circumstances where the applicant elected to make the amendments and was not required to do so, no unfairness resulted in the payment by it of costs. This is because the applicant is presumed, in making the amendments, to have thought them necessary. This is a process that could have been undertaken prior to the filing of the appeal. It would not, therefore, be fair to impose upon the council the costs associated with considering the plans a second time.

35 The council submitted that the term "minor" when read in the context of s 97B as a whole, encompassed only amendments that were trivial or de minimus or that did not require significant or proper consideration by a council.

36 In relation to the availability of conditions which could otherwise be imposed in lieu of the amendments, the council submitted that this was not determinative of the issue of whether the amendments were minor.

37 I accept the submissions of the council that the words of s 97B are clear on their face insofar as it is the plain intention of Parliament to impose a liability for costs on an applicant who seeks to rely on an amended development application for anything other than minor amendments, irrespective of whether or not the amendments are ultimately beneficial. So much so appears from the second reading speech quoted in Cachia (at [18]). 38 An unintended result of the enactment of s 97B of the EPAA may be to deter applicants from conducting their appeals efficiently by electing not to narrow the issues in dispute on appeal by making appropriate amendments to their development applications (see, for example, Cachia). Be that as it may, the remedying of this vice is a matter for Parliament and not for the Court by recourse to a strained construction of the unambiguous language of s 97B and an unreasonably and unjustifiably wide definition of the term "minor". 39 Having said this, the Court must nevertheless grapple with what is properly meant by "minor" within the ambit of s 97B of the Act. 40 In the first Groeneveld Acting Registrar Gray stated the following (at [12]-[18]):

12 Much of my decision must turn to the precise meaning of 'minor amendment' in s 97B(1) of the Environmental Planning and Assessment Act . Whilst there is as yet no judicial guidance on this point, this was a question considered by Senior Commissioner Moore in Cachia v Manly Council (No 2) [2009] NSWLEC 1107. 13 In that decision, the Senior Commissioner considered the Minister's second reading speech on 15 May 2008 and the explanatory note to the amending bill. He found neither of those things to be of assistance to him in determining what might constitute a 'minor amendment'. He then goes on to consider the interpretation by Bannon J in Coshott v Woollahra Council [1996] NSWLEC 256 of the words 'minor amendment' as they appeared in the Local Government Act 1993 . The Senior Commissioner arrives at the following conclusion (at para 25-26): "25. It is clear that the matter that I need to determine is one of fact and degree. The words that are used by Bannon J in that Coshott, on two occasions, relates to the (relative or overall) effect of the changes being minor.

26. I am satisfied that it would be appropriate, consistent with what his Honour said in Coshott and consistent with the legislative intention, to have regard not to the number of amendments but, whether in the context of the issues that are pressed by the council, the total effect of the changes are minor or not." 14 I agree with the reasons provided by the Senior Commissioner and adopt the conclusion reached by him. In order to determine whether amendments are a minor amendment, I must have regard to the degree of the changes made and their overall effect.

15 Mr Cottom, for the Council, suggests that the proper circumstances in which an amendment might be considered 'minor' are those where the amendment does not cause the Council to conduct a significant re-assessment of the development application. Further, he suggests that other circumstances might include those where the amendments are made to resolve non-threshold issues.

16 The Council submits that the points raised by the applicant are not sufficient to fall within the meaning of 'minor amendment'. In light of the reasoning set out by the Senior Commissioner, I accept that submission.

17 I also reject the applicant's submission that an amendment must be minor where there is no change in the concept. It is clear that I must look at the overall effect of the amendments, and not simply be limited to the overall development concept. Further, that the amendment is responsive to issues raised by the Council or narrows the issues in contention between the parties cannot automatically result in the amendments being described as minor.

18 The applicant asserts, as indicated above, that there is no evidence relied upon by the Council to establish that additional costs will be incurred by them or additional work will be required as a result of the amendments. Whilst this is true, I am of the view that this is not a relevant consideration for my determination. 41 On appeal ([2009] NSWLEC 149), Preston CJ affirmed the decision of the Acting Registrar in the second Groeneveld and stated further (at [29]-[32]): 29 I accept that an assessment of whether an amendment to a development application is minor or not must be undertaken having regard to the context of the development and its location. Hence, in this case, it is relevant to look at the length of road that is being proposed, the site area, and the trees on the site. However, in this case the critical factor is the impact that the amendments to the development, in particular the re-alignment of the road and the new methods of construction of the road, had for the retention or removal of the trees. It is the significant changes to the trees to be retained and removed that causes these amendments to not be able to be classified as minor.

30 It may be accepted that the amendments did not cause an entirely new issue to be raised. Nevertheless, the amendments did require an existing issue to be re-assessed, in particular, they required the re-assessment of the impact the now proposed development would have on the retention and removal of trees. There were material differences for the reasons I have already explained.

31 The amendments cannot be said to be only matters of detail. Of course, the details of the location of the road, the method of construction and the identity of trees to be removed or retained, have altered by reason of the proposed amendments. However, these changes are of significance for the reasons that I have given. It is not to the point to say that the development still remains, in broad terms, the subdivision of land, the carrying out of associated works including construction of a roadway, and the removal of trees. Of course, that is true but that is not an answer to whether the amendments are minor. The concept of a minor amendment cannot be restricted to one which involves the retention of the same concept.

32 The fact that the amendments do not require re-notification is, in my opinion, an irrelevant consideration in determining whether or not the amendments should be classified for the purposes of s 97B (1) as minor amendments. The requirement for re-notification will vary from council to council depending upon the applicable legislative and policy instruments applying in the local government area. 42 A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA: (a) first, the question of what is 'minor' is one of fact and degree ( Cachia at [25] and the first Groeneveld at [14]);

(b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development ( Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]);

(c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]);

(d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]);

(e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]);

(f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor;

(g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and

(h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]). 43 In the present case, it is not necessary for me to articulate with any degree of precision, even if it were possible to do so, what is encompassed by the term "minor" in s 97B of the EPAA. Nor need I determine the correctness of the council's possibly overly parsimonious definition of "minor" as "something that is more than trivial or de minimus". I agree, however, with the council's submissions to the extent that if the amendments require significant assessment by the consent authority then they are less likely to constitute minor amendments for the purpose of the provision. 44 This is because the amendments contained in the amended plans clearly contemplate a change to the development application that is more than "minor" or, in the applicant's words, more than "mere detail". At the very least, the amendments will require a full assessment by council of compliance with the Ku-ring-gai Local Environmental Plan 194 in respect of the deep soil component of the proposed development and an assessment of the impact of the changes to the top floor on the privacy of neighbours. These alone make the amendments more than "minor". 45 That the amendments could be the subject of conditions of consent is, in my view, not of assistance to the applicant and I accept the submissions of council in this regard.

46 While the potential imposition of conditions may in some circumstances have a bearing on whether or not the amendments can be classified as minor, for example, where the consent authority agrees that all of the amendments are readily capable of being the subject of a condition, this is not the present case. The applicant cannot, therefore, seek to avoid the blunt consequences of s 97B(2) by contending that the amendments are capable of, and ought to be, the subject of conditions at some future point. 47 For the reasons given above I am not satisfied that the amended plans constitute a minor amendment to the development application. Section 97B of the EPAA thus compels me to make a costs order in favour of the council in the terms set out in s 97B(2) of that Act. Orders

48 Accordingly, the orders of the Court are: 1. leave granted to the applicant to rely upon the amended plans; and

2. that the applicant pay the respondent's costs incurred in respect of the assessment of, and the proceedings relating to, the original development application the subject of the appeal, which include this notice of motion, as agreed or assessed.

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