Groeneveld v Wollongong City Council

Cachia v Manly Council (No 2) [2009] NSWLEC 1107 CASES CITED: Coshott v Woollahra Council [1996] NSWLEC 256 Tomko v Palasty (No.2) [2007] NSWCA 369 (2007) 71 NSWLR 61

APPLICANT John Groeneveld (in person)

LEGAL REPRESENTATIVES: RESPONDENT M Cottom (solicitor) SOLICITORS Kells the Lawyers

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: Mr Groeneveld by notice of motion applies to review the decision and the order of Acting Registrar Gray on 18 June 2009 that he pay the costs of Wollongong City Council ("the Council") under s 97B(2) of the Environmental Planning and Assessment Act 1979 ("the Act").

The Acting Registrar's decision 2 The Acting Registrar's decision was a determination of the application by the Council for costs pursuant to s 97B of the Act following leave being granted by the Court on 11 May 2009 to Mr Groeneveld to amend his development application for a five lot residential subdivision and associated works, principally relating to the construction of the roadway to access the lots, and for tree removal. 3 The amendments related to the location and construction of the roadway and removal of trees. The amendments were a response to contentions raised by the Council in its amended statement of facts and contentions filed in court on 24 February 2009. Contention 6 was that the access was unsafe and unserviceable. One of the Council's concerns related to the roadway from its entrance from Brokers Road to around chainage 30. Mr Groeneveld's response was to widen the roadway along this length and at the intersection. Contention 10 was that the information provided was insufficient to clearly identify the site characteristics, the details of the proposal and its impacts including on trees. One of the additional documents requested by the Council was an engineering plan overlaid with a landscape plan, a tree survey and an earthworks plan. The overlay was requested to fully assess the impact of the proposed development on the existing trees.

4 When Mr Groeneveld prepared the requested overlay, he discovered that the proposed development, notably the roadway and its construction, would impact on the existing trees differently to what had previously been assessed by the applicant and its experts to be the case. Trees that previously had been assessed as being able to be retained would in fact need to be removed but other trees that were recommended for removal might, with modifications to the proposed development, be able to be retained. 5 In response, Mr Groeneveld proposed altering the alignment of the roadway between chainages 70 and 110, in order to retain a significant tree; replacing the previously proposed retaining walls for the roadway along this chainage on the northern side with sheet piling, to lessen the impact on trees in the vicinity; and replacing a series of terraced retaining walls to the east of the turning head at the end of the roadway with piers supporting a suspended slab, so as to mitigate the impact on trees and their roots in the vicinity. These amendments have the beneficial consequence that trees that had previously been proposed for removal as being adversely affected by the proposed development, could be retained. 6 Prior to the amendments, Mr Groeneveld's arborist had stated that 50 trees conflicted with the proposed development and would require removal. However, upon producing the overlay showing the true impact, and making the amendments to the roadway and its construction, 26 of those trees that had originally been recommended for removal were proposed to be retained. But, conversely, 20 trees that had originally been proposed to be retained were now recommended for removal. The result was a new balance of 44 trees recommended for removal. 7 The Acting Registrar granted leave to Mr Groeneveld on 11 May 2009 to amend the development application in these respects. 8 On the Council making application for costs under s 97B of the Act, the Acting Registrar was required to determine whether the amendments in respect of which leave had been granted could be classified as minor amendments within the meaning of that term in s 97B(1) of the Act. If so, then s 97B would not apply. However, if not, then s 97B(2) required the Court to make a costs order. That subsection provides: "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." 9 The Acting Registrar determined, for reasons given in a written judgment delivered on 18 June 2009, that the amendments could not be classified as minor amendments and, therefore, she was required to make a costs order against the applicant in terms of s 97B(2). The Acting Registrar so ordered. 10 Mr Groeneveld has applied to the Court to review the Acting Registrar's decision and order.

The power of review 11 The power of the Court to review a registrar's decision and order is in Pt 49 r 49.19 of the Uniform Civil Procedure Rules 2005. The scope of the review is not an appeal and is not subject to the restrictions that apply to them: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [6], [10], [46], [50] and [52]. In a review, the Court must exercise its own discretion. This discretion extends to a discretion as to whether, and if so how, to intervene. There is an onus on a person seeking to have the Court set aside or vary a registrar's decision to make out a case that the Court, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) at [6] and [10]. 12 What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review, in particular whether it is a decision on practice and procedure or a decision which finally determines or has a decisive impact on a party's rights. In Tomko v Palasty (No 2) at [8] and [9], Hodgson JA (with whom Ipp JA also agreed) provided guidance as to what might be required for the different types of decisions: "8. In the case of a decision on practice of procedure, this will normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence. Even then, a court may not think that the interests of justice require intervention. This could be so, for example, if the error of law is a deficiency of reasons and the result is on its face not an unreasonable one. 9. In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a court may be more willing to intervene. It may permit further evidence to be led which does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interest of justice require it. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v The King error is shown, again if it is satisfied that the interests of justice require this. To that extent, the review may be considered a de novo hearing." 13 Basten JA also noted that policy factors justifying restraint on interference by a reviewing court may have more weight in the case of decisions on practice and procedure than those determinative of legal rights: see at [47]-[48] and [52(4)]. 14 In this case, the decision and order of the Acting Registrar did impact on the party's rights; it imposed an obligation on the applicant to pay the costs of the respondent in terms of s 97B(2) of the Act and the respondent acquired a correlative right to be paid its costs. In reviewing such a decision, the Court may be more willing to intervene if it is satisfied that it is in the interest of justice to do so.

The evidence on the review 15 The parties tendered evidence of the development application, the plans and supporting documents, prior to being amended by leave of the Court on 11 May 2009, and the plans and supporting documents after amendment. Consideration of this evidence allowed the Court to understand the nature and the consequences of the amendments. Importantly, the evidence revealed that the development for which consent was sought included the subdivision of the land, the construction of the roadway and the removal of trees. The latter aspect of the development was made clear by the original development application lodged with the Council, which under the major heading of the "Proposal", described the development as "6 lot subdivision" (subsequently it was amended to be a five lot subdivision) and further described the subcategories of development as being both "Subdividing land" and "Tree removal". 16 The original development application lodged with the Council had a number of reports accompanying it. One of those reports was a tree assessment report by Mr Groeneveld's consulting arborist, Mr Varley, dated 26 March 2007. That report stated, in section 8 on page 26, that "...the following trees conflict with areas of the proposed subdivision (roadway, building envelopes) and would require removal for the existing proposal to proceed." The tree numbers were then listed. The report continued that "those remaining trees will require retention with the allocated Tree Protection Zones".

17 Subsequently, after the appeal had been lodged to the Court, Mr Groeneveld's consulting arborist prepared further tree assessment reports. One of the further reports was dated 24 April 2009. In section 8 of the report, on page 27, the consulting arborist stated "...the following trees conflict with areas of the proposed subdivision (road, building envelopes) would require removal for the existing proposal to proceed". The trees were then specified by number. The report then continued that "those remaining trees will require attention with the allocated Tree Protection Zones".

The parties' submissions 18 Mr Groeneveld submitted that the reason why it was in the interest of justice for the Court to intervene and set aside the Acting Registrar's decision was that the amendments to the development application should properly be classified as minor and that the Acting Registrar erred in fact in finding otherwise. Mr Groeneveld did not submit that the Acting Registrar erred in law in her interpretation of s 97B, or in her interpretation of the words "minor amendment" in s 97B(1). Rather, Mr Groeneveld submitted the error was in the application of the section to the facts in this case. Mr Groeneveld submitted that the amendments should be classified as minor for basically four reasons.

19 First, the amendments should be considered in the context of the site and the development as a whole. Mr Groeneveld referred to the decision of Bannon J in Coshott v Woollahra Council [1996] NSWLEC 256 where his Honour, dealing with amendments made to a single dwelling, stated: "It is a matter of degree whether changes are major or minor. In a small project any change may be major. In a large scale project such as a three or four storey Vaucluse mansion, the relative effect of change may be minimal." 20 Mr Groeneveld submitted that the site was a large site. The area of the land to be subdivided was about 5,400 square metres, to which should be added the area of the council road reserve, on which the roadway accessing the lots to be subdivided was proposed to be built. When these two lands were combined, the total area was around 9,000 square metres. The proposed roadway was itself around 200 metres long and up to 15.8 metres wide. There were 294 trees on the site. Mr Groeneveld says that the amendments, and their impacts, need to be considered in the context of these matters. 21 Secondly, Mr Groeneveld submitted that the amendments did not lead to any new issues being raised. Mr Groeneveld submitted that the amendments were responsive to the Council's contentions, in the way that I have previously described. The amendments were intended to reduce the environmental impact, in particular the impact on trees. Mr Groeneveld referred to the decision in Cachia v Manly Council (No 2) [2009] NSWLEC 1107 where the Senior Commissioner concluded that the amendments to the development application in that case could not be classified as minor, primarily because of the effect the amendments would have on neighbours. Mr Groeneveld submitted that in this case, the amendments did not affect neighbours or neighbouring property. The amendments only have consequences internally, and in particular in relation to the trees. 22 Thirdly, Mr Groeneveld submitted that the amendments effected only a change in detail not in the concept of the development. In particular Mr Groeneveld referred to the substitution of sheet piling for retaining walls. Mr Groeneveld submitted that both forms of construction have as their purpose the retention of soil and the support of the road. The difference between the two methods of construction was one of detail, not concept. Mr Groeneveld referred to the fact that on the original plans, in the sections, the retaining walls were described as being "subject to future structural design". Mr Groeneveld submitted that it was therefore always contemplated that there would need to be further structural design. The fact that that design had been brought forward by now proposing sheet piling was not a change in the concept of the development, only the provision of detail. Mr Groeneveld further submitted that the change in the method of construction from retaining walls to sheet piling could have been done by way of conditions of consent. 23 Fourthly, Mr Groeneveld stated that the amendments did not require re-notification and therefore did not affect the need for community consultation. Mr Groeneveld made this submission based on the statement by the then Minister for Planning, the Honourable Frank Sartor MP, in the second reading speech of the Bill which introduced s 97B into the Act. Particularly, Mr Groeneveld referred to the statement by Mr Sartor that the proposed s 97B: "...is to act as a disincentive to applicants seeking to amend their proposals before the court without community consultation or input from councils and other relevant authorities." 24 Mr Groeneveld submitted that the fact that there was no impact on community consultation meant that the amendment should be considered to be minor. 25 Finally, Mr Groeneveld said in reply, in relation to the change in the trees to be removed and retained, that every tree on the site had already been assessed by Mr Groeneveld's arborist. The only change was that some trees that had previously been recommended for retention were now recommended for removal and, conversely, some trees had been recommended for removal were now to be retained. Mr Groeneveld said, therefore, there had been an opportunity to assess the trees. 26 Mr Cottam, the solicitor for the Council, addressed each of the amendments, their consequences and their significance. Mr Cottam submitted that, cumulatively, the amendments to the roadway and its method of construction, and the consequences of removal and retention of different trees, resulted in the amendments not being minor.

Exercise of the Court's discretion 27 Having considered the evidence tendered on the review and the parties' submissions, I am not satisfied that Mr Groeneveld has made out a case that the Court, in the interests of justice, should exercise its discretion to set aside the Acting Registrar's decision. The amendments to the location and construction of the roadway, and the changes to the identity and number of trees to be removed and retained, cumulatively, cannot be properly described as being minor. The number of trees that changed from originally being recommended for removal to being retained, and vice versa, and the proportion of these trees to the total number of trees originally proposed to be removed, are material. This remains true even if one has reference to the total number of trees on the site (most of which were well away from the proposed development) of 294. 28 The change in the identity of, and consequences for, the trees by reason of the amendments needed to be assessed. Whilst Mr Groeneveld's arborist may have identified the trees, their species, safe useful life expectancy, and other features, the assessment of the impacts of the amendments to the development depended on knowing which trees were proposed to be retained and which trees were proposed to be removed. Twenty trees originally proposed for retention were never assessed on the basis that they were to be removed. The amendments necessitated that this be done. Twenty-six trees previously recommended for removal were, by reason of the amendments, now put forward by the applicant as being able to be retained. The Council was entitled to test this assertion by carrying out an assessment of whether the new location and proposed construction methods would enable the retention of the trees. 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. 33 For these reasons, I am not satisfied that a case has been made out for me to exercise the Court's discretion to intervene and set aside the decision of the Acting Registrar. 34 I note that in the course of argument the parties clarified what should be considered to be the "original development application" in s 97B (2). This was accepted to be the development application as amended by leave of Registrar Dixon on 12 November 2008. Accordingly, to assist in the assessment of costs, it would be beneficial to add a time period in any order made by the Court, starting the day after Registrar Dixon's order, namely, on 13 November 2008, and ending on the day of the Court granting leave to amend the development application (namely, 11 May 2009). I will therefore vary the Acting Registrar's order to add these time periods. 35 Accordingly, the Court orders: 1. The Acting Registrar's order of 18 June 2008 should be varied by means of substituting for the Acting Registrar's order the following order: "1. That the applicant pay the respondent's costs, in the period 13 November 2008 to 11 May 2009, incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal, as agreed or assessed."

2. Otherwise, the applicant's notice of motion filed 10 July 2009 is dismissed.

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