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